1
THE PUBLIC'S RIGHT OF ACCESS TO
POLICE MISCONDUCT FILES
By Lynne Wilson
Attorney in Seattle, WA; Member of Puget Sound Coalition on Police
Accountability and the N-COPA Steering Committee. A longer
version of this article appeared in the Jan-Feb 1994 issue of the
National Lawyers Guild's Police Misconduct and Civil Rights Law
Report [Clark Boardman Callaghan, New York City, publisher].
1. Introduction
Anyone who has tried to obtain police misconduct records
knows about the vehemence with which police departments hide
behind so-called state "privilege" laws. Local police departments
will spend vast amounts of resources keeping these records away
from anything that remotely looks like a public view. Essentially,
these files are shielded from all public scrutiny.
The secrecy surrounding these records is both unnecessary and
unjustified. The public does have a right of access to the
records, a right that is based on basic democratic values. This
article is an attempt to analyze the legal bases that are used to
cloak them with unwarranted secrecy.
The ultimate justifications for the excessive secrecy
cloaking local police misconduct files are located in two
2
exemptions found in most state "freedom of information" statutes,
the "privacy right" and the "law enforcement investigative record"
exemptions. Police-friendly state court judges often stretch and
distort both exemptions far beyond their original purposes to
justify keeping these records secret.
2. Basis for Public Access Right:
State Freedom of Information Statutes
Nearly all states have statutes requiring public disclosure
of government records. Most state legislatures modelled these
statutes at least partly on the federal Freedom of Information
Act. For simplicity sake, these statutes will be generically
referred to as state "FOIA"s.
Since local police departments are state-created rather than
federal agencies, no body of law exists that applies the federal
FOIA law to requests for local police misconduct files. However,
because of the implicit or explicit state modelling on the federal
FOIA, most state courts are guided by federal law in construing
their particular FOIAs, especially where the language is parallel.
Where the wording is even slightly distinct, state courts will
sometimes reject a federal ruling granting disclosure in favor of
one requiring secrecy.
3
Many state FOIA statutes contain exemptions modelled on the
federal FOIA "privacy right" and "investigatory record"
exemptions. One or the other of these two exemptions usually form
the basis for withholding police misconduct files. In addition,
nearly all state FOIAs contain legislative intent provisions in
favor of "the free flow and disclosure of information between
government and the people" and a mandate that the disclosure law
is to be construed liberally in favor of disclosure. The language
contained in many of these legislative intent provisions shows
that the right of public access to government records is directly
tied to some version of the idea "that all persons are entitled to
full and complete information regarding the affairs of government
and the official acts and policies of those who represent them."
If a state FOIA contains language such as that found in the
Illinois FOIA quoted above, and a request for police misconduct
files is motivated by the need to be assured of "continuing public
confidence in the fairness" of a particular police department's
disciplinary process, then an agency or a court responding to a
request is bound to an interpretation in favor of disclosure
rather than secrecy. Unfortunately, state courts addressing this
issue simply ignore the policy declarations, and the democratic
4
values announced in them, stretching and distorting the exemptions
wherever they can to find in favor of secrecy.
Most state laws provide that restraints on public access to
information are to be seen as limited exceptions to the general
rule in favor of disclosure. In contexts other than a citizen's
request for police misconduct files, many state judges in written
opinions courts have held that any exemptions are to be read
narrowly.
To avoid confusion on this issue, the Washington State
Legislature in 1992 amended that state's Public Disclosure Act to
include the following preamble:
The people of this state do not yield their sovereignty
to the agencies that serve them. The people, in
delegating authority, do not give their public servants
the right to decide what is good for the people to know
and what is not good for them to know. The people
insist on remaining informed so that they may maintain
control over the instruments that they have created.
This preamble has yet to be used in a published legal case but its
language further strengthens the argument, particularly with
regard to public requests for police misconduct records, that the
public's right of access is much closer to being absolute than
most courts acknowledge.
3. The Public's Right to Know About Police Misconduct
and The Fairness of Disciplinary Systems
5
Police misconduct is a matter of strong public interest.
Even though many departments name their self-investigative units
"internal affairs bureaus" or something similar, police misconduct
is not simply an "internal" department matter: It is the public's
business. As stated in the Washington preamble quoted above,
citizens, not police department bureaucrats, are the ultimate
arbiters of what sort of police behavior is acceptable in a
democratic society.
Law enforcement officers wield extensive authority in the
exercise of their duties, including the authority to use force and
to deprive individuals of their constitutional rights. Whether
those officers, trained and paid at taxpayers' expense, use
excessive amount of force in carrying out their responsibilities
or otherwise misuse their authority is clearly the public's
business. Whether police supervisors are effectively controlling
officers on the street and how well they discipline them for
breaches of standards is also clearly the public's right to know.
This public right to know extends to whether a particular
department has raised the burden of proof to an impossible level
in misconduct cases, sustaining few complaints and generally
failing to impose discipline or to deter behavior that the public
finds unacceptable. The right to know is particularly important
6
with regard to excessive force investigations. A citizen's right
of access is arguably much stronger when a request is made
concerning the investigation of alleged constitutional rights
violations. Whether a department is requiring an impossible
burden of proof for what are essentially constitutional violations
is also clearly the public's right to know.
The public's right of access extends even to investigations
regarding an officer's off-duty behavior, although this extension
may depend on the severity of the allegations. A strong public
interest exists in knowledge of an internal investigation
involving, for example, allegations of off-duty sexual harassment,
assault, or illegal use of a weapon. If allegations of off-duty
illegal behavior against an officer have been investigated
internally and sustained, the public has a right to know
regardless of whether that officer is assigned to patrol or to the
vice unit: Known illegal behavior, even if it occurs during off-
hours, significantly undermines an officer's ability to enforce
the law, and the public's interest in the functioning of its law
enforcement officials is obvious.
Principles derived from defamation law apply to establish the
strength of the public interest of disclosure for investigations
involving both on duty and off duty behavior. For example, a
7
police officer is nearly always considered a "public official" for
purposes of a defamation suit. Precisely because of their
extensive law enforcement authority, officers are considered
"among those with substantial responsibility for or control over
the conduct of governmental affairs." For purposes of a
defamation analysis, police officers have been held to be "public
officials" because of their authority to make "decisions to search
and to arrest" individuals, decisions which "directly and
personally affect individual freedoms." A police officer has
generally assumed "the risk of greater public scrutiny attendant
to public life," and thus whether he or she is fit for duty is a
matter of public concern.
The public interest is always strongest when allegations
involve an officer being remiss in discharging his public duties
or abusing the public's trust. In those instances where street
level patrol officers do not exercise broad discretion, their
exposure to public scrutiny is "limited to matters more closely
connected to actual job performance." When the officer's
behavior at issue directly relates to his official duties or to
his performance of those duties, the public's right to scrutinize
is at its greatest.
Particularly when a state FOIA records request involves
8
investigations of behavior such as excessive force or racially
motivated harassment, the information requested directly relates
to the officer's duties and his or her fitness to perform them.
With respect to these investigations in particular, the nexus
between the position and the information being disclosed to the
public is particularly strong. Where the information being
requested involves an investigation into an officer's use of
deadly force, the public's interest in disclosure is at its
maximum. The same holds true for the question of whether
supervisors are effectively controlling the rank and file and
whether and how they discipline officers who breach standards of
proper conduct.
4. The Illusion of Police Officer Privacy Rights
In Misconduct Records
The "privacy right" invoked by officers accused of misconduct
is for the most part illusory. Even if the information being
sought involves sexual activities, an officer's privacy right is,
in the words of one federal judge, "especially limited in view of
the role played by the police officer as a public servant who must
be accountable to public review."
Most state FOIAs contain at least one exemption from
disclosure of records to the extent that disclosure would invade a
9
person's "personal privacy." This "personal privacy" exemption is
often asserted by departments and individual officers to prohibit
disclosure of misconduct records in their entirety or to prohibit
disclosure of names, addresses, places, and dates. With respect
to officers accused of misconduct, this "personal privacy"
exemption does not apply.
Many of the state FOIA "personal privacy" exemptions are
modelled on language which was up until recently found in the
federal Freedom of Information Act. Federal records subject to
disclosure were partially exempt under the Act to the extent that
production "would constitute a clearly unwarranted invasion of
personal privacy." The words "personal privacy" are not
specifically defined in the federal law.
Some state FOIAs do not use language paralleling the federal
law regarding privacy but do contain sections specifically
defining what an "invasion of personal privacy" is. The
Washington Public Disclosure Act, for example, states that "a
person's right to privacy ... is invaded or violated only if
disclosure of information about the person: (1) Would be highly
offensive to a reasonable person, and (2) is not of legitimate
concern to the public."
10
Legal commentators define what constitutes "highly offensive
to a reasonable person" as those phases of a person's life and
activities "that he [or she] does not expose to the public eye,
but keeps entirely to himself [or herself] or at most reveals only
to family or to close personal friends. Sexual relations, for
example, are normally entirely private matters, as are family
quarrels, many unpleasant or disgraceful or humiliating illnesses,
most intimate personal letters, most details of a [person]'s life
in the home, and some past history that [the person] would rather
forget." However, even these intimate details cease to be private
if the matter is one of "legitimate public interest."
Ironically, many local police departments refer to their
citizen complaint divisions as "internal affairs bureaus" or
"internal investigation sections", implying that officer
discipline is a "private" concern that is not of "legitimate
concern to the public," further strengthening an officer's claim
to privacy in the records. To the contrary, however, it would be
difficult to imagine a subject-matter of more legitimate concern
to the public than how its police departments are managed. At
least one state court has held that police officers have no
privacy rights in misconduct records because the records, by
definition, "involve events which occurred in the course of public
11
service ... matters with which the public has a right to concern
itself."
5. The Law Enforcement Investigative Records Exemption
Most requests for misconduct files also involve application
of the "law enforcement investigative records" exemption found in
most state FOIAs. These exemptions are often, and successfully,
used as the sole basis for withholding police misconduct
investigation files. The case law dealing with these exemptions
usually begins with a threshold determination of whether the files
are "investigatory records" within the meaning of the specific
statutory language. A determination is then made as to whether
release of the files or information would have a "chilling effect
on law enforcement," and whether "the public's interest in
secrecy" outweighs the public's interest in disclosure.
These latter concepts are never spelled out explicitly in the
state laws, and seem to contradict the democratic values inherent
in the public's right of access. They are almost entirely the
creations of the judicial branch. A number of federal courts have
seriously questioned the empirical basis for a finding that public
disclosure of internal disciplinary files causes a "chilling
effect" on law enforcement. One judge said that "if the fear of
disclosure ... does have some real effect on officers' candor, the
12
stronger working hypothesis is that fear of disclosure is more
likely to increase candor than to chill it."
Some state courts have held that once an internal
investigation is no longer active or once a final determination
has been made, the records can be made public even where the
"investigatory record" exemption applies. This is particularly
the case where the investigation involves a high level department
official such as the police chief.
The problem with many state cases interpreting the
"investigative records" FOIA exemption is a general judicial
failure to include balancing of any law enforcement interest
against the public's nearly absolute right of access to
information concerning police officers' fitness for duty. Some
kind of balancing seems to be required, and a balancing
requirement is directly implied in the strong democratic value
language contained in the preambles to most state laws. As one
Washington State Justice said: "It is important for the public to
know how their law enforcement employees are performing their
official duties and to know whether the standards within these
agencies are being maintained and enforced."
Unless an internal investigation has not been completed,
unless promises of confidentiality have been explicitly made and
13
the names of witness, complainants and officers are not otherwise
known, unless it can be explicitly shown that some specific and
serious harm will be inflicted on an officer or a witness from
disclosure of a specific file, the "law enforcement investigatory
record" exemption does not provide a basis for a police department
to withhold information contained in internal investigation files.
Treating police officers as if they need special protection from
some imagined "harassment" does neither them nor the public any
service. The public has no interest in "secrecy": "Secrecy"
isn't a value on which either democracy or freedom of information
laws are based.
6. Conclusion
Police officers have few privacy rights in misconduct files
because the files only concern the officer's fitness to perform
his public duties. Based on the legal definition of "privacy,"
the public has an overriding legitimate public concern in this
information. Even if it can be shown that stress might be added
to the job or that an officer might be harassed if misconduct
files were disclosed to the public, the public's interest in
"maintaining control over the instruments they have created" is
paramount to any tangential impact on a particular department.
Posts
