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Sunshine on the Thin Blue Line: Public Access to Police Internal Affairs Files STEVEN D

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Sunshine on the Thin Blue Line: Public Access to Police Internal Affairs Files STEVEN D Comm Lawy v22#3 Fall 2004 10/3/05 12:34 PM Page 34 Sunshine on the Thin Blue Line: Public Access to Police Internal Affairs Files STEVEN D. ZANSBERG AND PAMELA CAMPOS Across the nation, cities are beset by More specifically, this article State legislators in Hawaii and angry allegations that police officers explains why neither of the two bases Illinois, among other states, chose to are abusive and out of control.1 most frequently asserted as the grounds preface their open records laws with Communities are torn apart by allega- for denying access to such records is similar language.7 tions of racial profiling or “driving while justified. Although police officers may In asserting that open records black” traffic stops.2 The video images have a legitimate privacy interest in statutes are a critical tool for providing of Rodney King being beaten by Los certain narrowly circumscribed portions access to government information, state Angeles Police Department officers are of files concerning their off-duty, pri- legislators have not neglected to recog- recycled and rebroadcast each time a vate conduct, they do not enjoy a rea- nize privacy rights. For example, police officer in another city is caught sonable expectation of privacy with California’s law declares, “In enacting on tape using force to restrain or arrest a respect to records concerning only how this chapter, the Legislature, mindful of suspect. Such allegations and incidents they discharge their official duties. the right of individuals to privacy, finds of police misconduct have fostered com- Similarly, although a small subset of and declares that access to information munity mistrust of police officers. documents in an internal affairs file concerning the conduct of the people’s Furthering this mistrust is police may properly be withheld under the business is a fundamental and neces- departments’ routine refusal to make deliberative process privilege, that priv- sary right of every person in this state.”8 available for public inspection the ilege does not encompass the results of In Montana, both the right to examine records of internal investigations into the investigation, such as documents documents and the right to privacy are alleged wrongdoing.3 In fending off the reflecting whether charges were sus- constitutional provisions.9 public’s requests to access internal tained and whether any discipline was Most states’ open records statutes affairs reports, police departments most imposed; nor does the deliberative resolve the tension between the need frequently invoke two bases upon process privilege properly apply to wit- for free access to information and per- which the denials of access are ness or officer statements recounting sonal privacy rights by creating an premised: (1) the privacy rights of the the events under investigation. Finally, explicit statutory exemption for records 10 officers involved, and (2) the delibera- weighing strongly against both of these that would violate a privacy right. tive process privilege attached to prede- objections to disclosure is the counter- However, by statute or precedent, these 11 cisional records recommending a policy vailing and compelling public interest exceptions are narrowly construed. In or course of action (i.e., what, if any, in providing the public with the means fact, several states’ legislatures (and disciplinary sanction to impose). to assess the propriety, thoroughness, courts) have recognized that public offi- The atmosphere of mistrust can only and impartiality of the investigation cials enjoy no legitimate expectation of be improved by bringing greater trans- into allegations of officer misconduct. privacy with regard to the manner in parency and accountability to police which they discharge their official departments. This article presents the duties. In Illinois, “the disclosure of Statutory Bases for Disclosure argument (and supporting case law) in information that bears on the public All fifty states have some type of open favor of greater public access, under duties of public employees and officials records law.5 The preamble or preface states’ open records laws, to records of shall not be considered an invasion of to many of these statutes explicitly rec- internal affairs investigations into personal privacy” for the purposes of ognize the democratic purpose of pro- alleged police misconduct.4 Public the state Freedom of Information Act viding public access to governmental access would help assure citizens that (FOIA) privacy exemption.12 Similarly, records. For instance, the New York their complaints are taken seriously, Hawaii’s Open Records Act allows for Records Act declares thus: investigated thoroughly in an unbiased publication of specific information fashion, and that officers who are found The legislature hereby finds that a free society related to “employment misconduct that is maintained when government is responsive to have violated departmental policies and responsible to the public, and when the results in an employee’s suspension or are appropriately sanctioned. public is aware of governmental actions. discharge,” including the nature of the The people’s right to know the process of conduct, a summary of the allegations Steven D. Zansberg (szansberg@faegre. governmental decision-making and to review com) is a partner in the Denver office of the documents and statistics leading to determi- of misconduct, and any formal discipli- Faegre & Benson LLP. Pamela Campos nations is basic to our society. The nary action taken.13 ([email protected]), a 2005 J.D. legislature therefore declares that government With regard to police files, some is the public’s business and that the public, states have asserted that such files, like candidate at Yale Law School, served as individually and collectively and represented a 2004 summer associate in Faegre & by a free press, should have access to the files of other public officials, do not Benson’s Denver office. records of government.6 warrant a special privacy exemption.14 34 ■ Communications Lawyer ■ Fall 2004 Comm Lawy v22#3 Fall 2004 10/3/05 12:34 PM Page 35 Tennessee’s open records law, for ments, including a report of the Denver lation of a person’s constitutional example, declares that all law enforce- Police Department’s internal affairs right to privacy.26 ment personnel records are open for investigation into the events leading up inspection, although the law does to and including the plaintiff’s arrest on Martinelli Applied require that the party requesting infor- July 15, 1976. When the Denver In applying this test, courts (in mation identify itself and that notice be District Court judge granted the plain- Colorado and elsewhere) have almost given to the police officer in question.15 tiff’s motion to compel production of uniformly found that information Other states’ open records laws, in that report (as well as other personnel regarding the official conduct of a contrast, expressly exclude police inter- files and job-related records of the offi- police officer is not highly personal and nal misconduct reports from a more cers in question), the police officer sensitive and, thus, is not protected general rule permitting publication of defendants filed an original proceeding from disclosure under the first prong of information about discharge of official with the Colorado Supreme Court seek- the Martinelli test. duties. The Hawaii statute, for instance, ing to preclude such discovery on the The specific instance of this rule, exempts police officers’ files from its grounds that compelled disclosure of applied in the context of police officers’ provision requiring release of employ- the internal affairs investigation file discharge of their official duties, is but ment misconduct information.16 would violate the officers’ constitution- one manifestation of a much broader In addition to privacy exemptions, al right of privacy.22 and well-recognized rule of law: “A most state statutes follow FOIA by The Colorado Supreme Court public official has no right to privacy as including an exemption for investigato- announced a tripartite test for determining to the manner in which he conducts his ry records. (In some instances, these when an individual’s privacy interests office.”27 Kentucky’s attorney general investigatory records must be made should outweigh the public interest in has opined that “disciplinary action available when the investigation is access to governmental records. Under taken against a public employee is a complete or inactive.17) Police depart- Martinelli, the court must determine (1) matter related to his job performance ments most frequently base their deci- whether there is a legitimate expectation and a matter about which the public has sion to withhold internal affairs files on that the materials or information will not a right to know”:28 the general privacy, investigatory be disclosed, (2) whether disclosure is Public service is a public trust. When public records, personnel file,18 or privileged nonetheless required to serve a com- employees have been disciplined for matters information exemptions. pelling state interest, and (3) if the neces- related to the performance of their employment . the public has a right to know about the sary disclosure will occur in the least- employee’s misconduct and any resulting dis- Right of Privacy: Martinelli Test intrusive manner with respect to confi- ciplinary action taken against the employee.29 23 In states that do not provide an express dentiality rights. It is entirely appropriate that this exemption from disclosure of police The first step of the Martinelli test more general rule of law be applied internal affairs investigation files, the requires closer inquiry, for it is under with full force to gun-carrying battle over access is most often waged this threshold standard that the officers’ police officers: claim for privacy rights fails. To estab- under a more general assertion by Police officers are public servants sworn to police officers of a constitutionally lish a “legitimate expectation” that serve and protect the general public.
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