Sunday, June 29, 2008











 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 







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.   







 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 







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 


 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 








 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 







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 







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 







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 







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."   







 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 







service ... matters with which the public has a right to concern 


 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 







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 







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. 

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