|
For today’s Daily Critical Issues Report, PERF Executive Director Chuck Wexler spoke with police executives and state Attorneys General from New Jersey, Delaware, Arizona, Florida, Tennessee, and Massachusetts about public disclosure of police officers’ disciplinary histories and other personnel records. To enhance transparency, some states are looking to make more records available to the public, but in a fair and responsible manner. The police chiefs and sheriff from the four states that already disclose many personnel records described how that process works in their jurisdictions. New Jersey Attorney General Gurbir Grewal: I’m Trying to Catch Up to Other States on Disclosing IA Files Over the past two years, since I became attorney general, one of our key focuses has been to make New Jersey a national leader on policing practices. Unlike many states, we don’t need legislation to effect some of the types of reforms that are being contemplated and implemented in other parts of the country through legislation. We have the authority to issue Attorney General’s directives, which are binding on the 36,000 law enforcement officers and 500 law enforcement agencies in the state. Since 2018, we’ve used that authority to implement some ambitious and progressive policing reforms. We are moving towards transparency on internal affairs investigations and records. We met resistance from 11 police unions that sued us. We are in the back of the pack on this issue, despite being forward in a number of other areas. So our challenge is catching up to our fellow states on disclosing internal affairs files. Delaware Attorney General Kathy Jennings: Delaware Currently Has No Transparency on Office Discipline I’m a first-term elected Attorney General in Delaware. I ran for office because I want our criminal justice system to be fair and equal to everyone, and to be perceived as such. As a prosecutor and as a defense attorney, I saw the change in the public perception of how the justice system works. The public went from believing police officers’ testimony unquestioningly to questioning everything. I think it’s incumbent on all of us to rebuild public trust. In Delaware there is no transparency in the disciplinary process. There is a law that keeps all personnel and disciplinary records confidential, so we will have to change that law if we’re going to move to a more transparent system, which I hope we will do. Tempe, Arizona Chief Sylvia Moir: We Haven’t Had Problems with Our Disclosure Law Our standard in Arizona is very different from California, where I started my career, so it took some adjustment. Arizona statutes requires a public body to maintain disciplinary records, and says that such disciplinary records shall be open to inspection and copying, unless such inspection or disclosure is specifically prohibited by statute. That tells police departments that these need to be treated exactly the same as other public records. There’s a balancing test that courts apply regarding the examination and copying of disciplinary records. Police departments strive to adhere to these statutes, and we redact similarly to the way we would redact other public records. We redact information that is confidential by law, or if privacy outweighs the public’s right to know, or if disclosure is not in the best interest of the state. If copies are made, there is a cost that is passed on to the requester. When a request is made, we share our IA Pro summary page of the officer’s disciplinary record. The summary page has the allegation and the finding of every case, including those that were unfounded or not sustained. If someone requests to see a full case, we will make that happen. It’s not common that a requester will come in to view the full case, but it does occur. It’s a longstanding practice, so that eases our emotion about this. Chuck Wexler: Have you had any issues with officers being targeted or harassed due to the release of these records? Chief Moir: I haven’t had anyone claim that the depth or degree of doxing has increased as a result of the revelation of these records. I can say that the degree of doxing on public officials has gotten quite extreme. I’ve been the victim of it, and it has been quite unsettling. But I haven’t seen any evidence that it has been exacerbated by our statute. Tucson, Arizona Assistant Chief Eric Kazmierczak: We Release Personnel Records, But Not Background Investigations Any disciplinary file that we maintain is publicly releasable. The interest level in that from the community is generally fairly low, unless we have a major incident. The laws that govern the release of administrative records and the legal requirements that govern the release of criminal records can intersect, and in those cases we have to conduct a fairly exhaustive review of the material and how those laws intersect to ensure that we’re not running afoul of disclosure requirements or employees’ rights. The specific instance would be when a police employee is facing a criminal charge, and they’re subject to a compelled administrative interview. That compelled interview would potentially not be releasable until the conclusion of the administrative investigation, but the remainder of the criminal case would be releasable. We maintain two types of records. We have one category that includes evaluations, training history, and other personnel files like that. We also have background files, which include the employee’s hiring application, background investigation, and polygraph testing. These are intentionally maintained in two separate places. Our personnel records are releasable and are not maintained in a confidential state. The background file is maintained in a confidential state, and we’ve had recent success in maintaining the confidentiality of those. For a background investigation, we interview candidates’ friends and family, and releasing that information would impact our ability to conduct a fair and full hiring process. Wexler: Have you had any issues with employees being threatened or harassed after records were released? Asst. Chief Kazmierczak: In some of these high-profile cases, we make a point to notify our officers ahead of time that we’re going to release their records. That gives them an opportunity to prepare. And we have a process where police officers can secure some personal information, like their home address and their car information, that would normally be a public record. But the culture here is that these things are public records, and it really hasn’t been an issue for us. Clearwater, Florida Chief Dan Slaughter: Family Members Are Sometimes More Concerned than Officers about Disclosure Our internal affairs records are confidential while they’re being actively investigated. Once they’re closed, they’re completely public. That includes any disposition – sustained or not sustained. It’s not difficult for us, because it has been in our culture, and it’s the way it has always been. We’ve never had a scenario where once the case was closed, it wasn’t publicly available. I don’t think it’s a serious problem, but I think that when it comes to minor internal offenses, supervisors may be a bit reluctant to create a public record if they feel they have the ability to remediate an employee. These supervisors aren’t trying to cover anything up. They’re just trying to deal with minor violations, like misapplying a particular statute or a minor policy violation, individually with the employee. We’ve had to stress the importance of properly documenting those things. Many successful early intervention programs are fueled by that lower-level information. We take it a step further and make a summary of our sustained internal affairs cases available on our website. The full file is subject to some redactions, but if someone is interested, they can pick up a copy of it. I don’t feel that this has caused too many issues. I share concerns that the material may be used for doxing or identity theft in retaliation, particularly when there’s a bit of a breakdown in respect for police. I find the cops are used to dealing with confrontation, but their families are the ones who react strongly to that, and understandably so. I think those concerns are probably rare, but they’re valid concerns to listen to. Volusia County, Florida Sheriff Mike Chitwood: Some Personnel Records Must Be Placed in Context When I got to Florida in 2006, I realized very quickly why they call it the “Sunshine State.” There is not a public record that people cannot request and receive. I’ve been down here 10 years as the chief in Daytona Beach and 4 years as the elected sheriff in Volusia County. Once you get used to it, it’s transparent. I have a local TV news station and the local newspaper that both make a monthly request for every closed internal affairs case, and we provide it to them. Some of these records need to be put in context. We just hired two young officers from another jurisdiction, and they both had three extremely minor complaints in three years. Both were written up for turning reports in late, and one was written up for cutting a corner too close and getting a flat tire while pursuing a murder suspect. But the public might look at that and think, “Why’d you hire somebody with multiple complaints against them?” The other issue looming on our horizon is Marsy’s Law, which gives victims and witnesses the right to have their information redacted from police reports when they’re released to the public. Officers are lining up a lawsuit claiming that if an officer is involved in a shooting, for example, his or her name needs to be redacted from the report. (Note: On the day PERF interviewed Sheriff Chitwood, a circuit judge ruled that a Tallahassee officer who fatally shot an alleged murderer brandishing a firearm was not protected by Marsy’s Law, so the officer’s name could be released.) Tennessee Bureau of Investigation Director David Rausch: Some Police Agencies Try to Use an Active Investigation to Protect All Their Records Our public records law requires that personnel records be made public, with personal identifying information redacted from those files. When there’s an active investigation, those investigative files are not available until the investigation is concluded, but that doesn’t apply to personnel files, unless there’s something in there that’s specific to the investigation. For example, in an officer-involved shooting case, the personnel file could be released without it impacting the investigation. There are times when jurisdictions will claim that they can’t release personnel files due to an ongoing investigation. I think these laws need to clearly explain that a file will be released if it’s not pertinent to an investigation. I think the only hang-up we see in Tennessee is that some agencies will try to use an active investigation to protect all their records. Retired Brookline, Massachusetts Chief Dan O’Leary: Disciplinary Cases Records Are Generally Open The way we handled it was once a case was closed, it became a public record and was made available. The only things that weren’t made available were the type of discipline an officer received and some of the witness information. Other than that, the reports are available for the public. In Brookline, we took it a step further to make our records public by releasing a report every six months that includes the race and gender of the officer and complainant, the charge, and the finding.
The PERF Critical Issues Report is part of the Critical Issues in Policing project, supported by the Motorola Solutions Foundation.
PERF also is grateful to the Howard G. Buffett Foundation for supporting this work.
|
