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. 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

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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. The gen- based right of privacy that would be information will not be disclosed, a eral public’s health and safety are at issue violated by public release of govern- police agency or officer must show whenever there is serious allegations of police 19 [misconduct]. The manner in which such alle- ment information about the officers. three necessary preconditions: (1) that gations are investigated is a matter of signifi- Perhaps the most clearly articulated rul- there exists “an actual or subjective cant public interest. . . . ing regarding this issue is found in the expectation that the information . . . [will] not be disclosed,” (2) that the Privacy interests are diminished when the party Colorado Supreme Court’s seminal seeking protection is a public person subject to opinion on this topic in Martinelli v. requested material is both “highly per- legitimate public scrutiny. . . . Performance of District Court.20 sonal and sensitive,” and (3) that dis- police duties and investigations of their perform- 30 In Martinelli, an individual who had closure of the information would be ance is a matter of great public importance. been arrested by several Denver police “offensive and objectionable to a rea- Accordingly, in Stidham v. Peace officers brought an action in state court sonable person of ordinary sensibili- Officers Standards & Training,31 the alleging assault and battery; false arrest ties.”24 Only if all three of these precon- Tenth Circuit found that “police internal and malicious prosecution; violation of ditions are satisfied does the informa- investigation files [are] not protected by his rights under the First, Fourth, Fifth, tion at issue become subject to a consti- the right to privacy when the documents Ninth, Tenth, and Fourteenth Amend- tutionally based right of confidentiality relate[] simply to the officers’ work as ments to the United States Constitution; or privacy, against which other rights police officers.” Similarly, a federal dis- conspiracy among the defendants; and may then be balanced.25 Thus, unless trict court judge in Utah found that a negligence on the part of the City and the information is of a “highly personal police officer who was subject to suspen- County of Denver and its police depart- and sensitive” nature such that its pub- sion and reprimand for on-duty conduct ment in selecting, supervising, and lic disclosure “would be offensive and did not have “a legitimate expectation of retaining the individual police officers.21 objectionable to a reasonable person,” privacy” because the disclosed informa- In the civil litigation, the plaintiff the disclosure of such information can- tion was “not of a highly personal and served a request for production of docu- not, as a matter of law, constitute a vio- sensitive nature.”32

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Recently, the South Carolina Court deliberative process privilege in an predecisional and deliberative or rec- of Appeals expressly rejected an overbroad fashion, claiming that the ommendatory in nature may still be attempt by a sheriff’s deputies to privilege extends to any and all infor- subject to disclosure if they are express- invoke a constitutional right of privacy mation gathered or considered in the ly referenced as the basis for the depart- with respect to an internal investigation course of conducting the investigation. ment’s disciplinary action.46 into their discharge of official duties, Clearly, by definition, the delibera- Properly cabined to its policy rationale which was found to constitute “conduct tive process privilege cannot extend to of encouraging frank and candid expres- unbecoming an officer,” resulting in postdecisional records that report or sion of opinions and proposals or recom- suspension without pay: document the outcome of an internal mendations of particular actions to policy- Unless and until the Supreme Court rules affairs investigation, whether or not the makers, the deliberative process privilege otherwise, we will follow its precedent and allegations against the officers were should be limited only to those documents not expand the “right of privacy” under the sustained.38 Similarly, records that doc- in an internal affairs file containing “rec- Fourteenth Amendment beyond those situations which the Court has ruled bear on the most inti- ument the official actions taken by the ommendations, advisory opinions, draft mate decisions affecting personal autonomy.33 department in response to the findings, documents, proposals, suggestions, and “[I]ndividual expectations of confi- i.e., the decision to impose disciplinary other subjective documents that reflect the dentiality must arise from the personal sanctions and the level of sanction personal opinions of the writer.”47 quality of any materials which the state imposed, do not fit within the delibera- possesses,”34 but information concern- tive process category but are instead a Countervailing Public Interest ing only the official conduct of govern- statement of departmental policy.39 Even when courts do recognize a police ment officials cannot, as a matter of Courts should also take a skeptical officer’s privacy interests in internal law, be deemed “personal, private or view of the assertion, frequently affairs files or the deliberative nature of sensitive”; thus, police officers cannot invoked by police agencies, that even certain records generated in the course have a legitimate expectation of privacy the bare collections of facts and eyewit- of an internal affairs investigation, in internal investigation materials that ness statements giving rise to an inves- relate exclusively to their official con- those interests must be balanced against tigation are properly shielded from pub- duct.35 Accordingly, information in the public’s interest in being able to internal affairs files that relate only to lic view as deliberative process materi- review the requested files. “[T]he gen- 40 the discharge of a police officer’s offi- als. A number of courts have ques- eral public’s health and safety are at cial duties should not be shielded from tioned the unsupported assertion that issue whenever there are serious allega- public inspection on the basis of the subjecting such witness statements41 tions of police [misconduct]. The man- officer’s constitutionally protected right (whether from civilians or uniformed ner in which such allegations are inves- of privacy in such information. officers) to public disclosure will nec- tigated is a matter of significant public essarily inhibit, or chill, the full, frank, interest.”48 For example, in Wiggins v. Deliberative Process Privilege Limits and accurate recounting of recollections Burge,49 a group of Chicago newspapers Another frequently cited ground for or observations of key events.42 “[T]he petitioned the court for access to inves- denying public access to internal affairs proposition,” said one court, “that tigative records used in a case involving investigation files available for public knowledge on the part of individual allegations of police torture. The court inspection is the deliberative process priv- police officers that the information they found that the officers’ privacy interest ilege. Rooted in both the common law and provide to [internal affairs] investiga- in such files was outweighed by the in statutory codifications, this privilege tors will later be subject to disclosure allows a litigant to withhold “predecision- “great public importance” of investiga- . . . will have a detrimental effect on 50 al” and “deliberative” materials that tion into performance of police duties. frank and open communication... The strength of this public interest express an opinion or recommendation for 43 a governmental decision maker to consid- should be subject to careful scrutiny.” argument is echoed throughout the case er in formulating government policy.36 Another court noted that “the alterna- law. The Montana Supreme Court stated Understandably, police departments tive . . . [i.e.] some possibility of disclo- that “[t]he conduct of our law enforce- wish to induce candid and honest feed- sure” could more likely incite candor:44 ment officers is a sensitive matter so that back and input when investigating pos- [I]n short, officers will feel pressure to be hon- if they engage in conduct resulting in dis- sible wrongdoing among their ranks. To est and logical when they know their state- cipline for misconduct in the line of duty, ments and their work product will be subject to do so, they proclaim, requires that all, the public should know.”51 In Minnesota, or practically all, of the information demanding analysis by people with knowledge of the events under investigation and consider- the state supreme court found that gathered and assessed by the investiga- able incentive to make sure the truth comes “[t]here is a compelling need for public tors for consideration by departmental out.... Thus there is a real possibility that decision makers be shielded from pub- officers working in closed systems will feel accountability, particularly with law lic scrutiny, lest those providing state- less pressure to be honest than officers who enforcement agencies.”52 Public interest ments and filling in reports be chilled in know that they may be forced to defend what in police misconduct is so strong that answering questions fully and frankly. they say and report.45 courts have released records even after Courts have recognized that portions Documents do not have to involve the individual involved has resigned.53 of internal affairs investigation files are results of an investigation, actions Public interest in monitoring the properly classified as deliberative taken, or eyewitness accounts in order conduct of its government servants in process materials.37 The problem is that to be subject to disclosure. Even docu- general, and police officers in particular, police departments often assert the ments that are properly characterized as extends beyond the ability to assess the

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actual conduct of on-duty officers;54 it is Unlike other evaluations and assessments, the 2004, at B-5; April M. Washington, $6.5 equally important for the public to be internal affairs process exists specifically to Million for Police Lawsuits: Bulk of Fees address complaints of police corruption (theft, Paid to Outside Attorneys in Excessive- assured that the investigations into alle- bribery, acceptance of gratuities), misconduct Force Cases, ROCKY MOUNTAIN NEWS, Apr. gations of abuse or other misconduct are (verbal and physical abuse, unlawful arrest, 12, 2004; Janine DeFao, Oakland Settles themselves above reproach.55 As one fed- harassment), and other criminal acts that would undermine the relationship of trust and confi- “Riders’ Suits”: Record $10.5 Million eral judge stated eloquently, “[t]he public dence between the police and the citizenry that is Payout—Police Reforms Required, S.F. has a strong interest in assessing the essential to law enforcement. The internal affairs CHRON., Feb. 19, 2003; Right Answer, truthfulness of allegations of official mis- procedure fosters the public’s trust and confi- Wrong Question—$18 Million Settlement of conduct, and whether agencies that are dence in the integrity of the police department, Haggerty Lawsuit Ends Ordeal, But Will It its employees, and its processes for investigating responsible for investigating and adjudi- Help Police-Community Relations?, CHIC. complaints because the department has the SUN TIMES, June 29, 2001; Joe Swickard & cating complaints of misconduct have integrity to discipline itself. A citizenry’s full and Suzette Hackney, Detroit Police Lawsuits 56 acted properly and wisely.” Another fair assessment of a police department’s internal Costly; In 3-Year Period, City Paid Out $32 court noted that “the public may have an investigation of its officer’s actions promotes the core value of trust between citizens and police Million, DETROIT FREE PRESS, Aug. 3, 2000. interest in knowing that a government essential to law enforcement and the protection 2. Cecilia M. Vega, Police to Investigate investigation itself is comprehensive, the of constitutional rights.62 Allegations of Racial Profiling—Officer Put on Leave After Being Accused of Harassing report of an investigation released pub- In light of this, the court concluded, licly is accurate, any disciplinary meas- Dozens of Latino Drivers, S.F. CHRON., “[i]t would be odd, indeed, to shield Aug. 5, 2004, at B5; Associated Press, ures imposed are adequate, and those from the light of public scrutiny... Federal Judge Allows Racial Profiling who are accountable are dealt with in an the workings and determinations of a Lawsuit to Proceed, Aug. 11, 2004 (dis- 57 appropriate manner.” process whose quintessential purpose is cussing lawsuit brought against Scituate, The need for public scrutiny of police to inspire public confidence.”63 R.I., police); Karin Brulliard, More Than internal affairs files as a means of instill- Highway Divides Austin—Study of Police ing confidence in the integrity of agen- Shootings Leads to Accusations of Racism, Conclusion cies’ self-regulatory function58 is particu- HOUSTON CHRON., May 23, 2004, at 32; larly acute in communities where police- Police departments often react in a knee- ACLU of New Jersey Sues Manalapan jerk manner in denying public access to Police for Targeting African-American community relations have been strained Youths, Aug. 24, 2004, available at by a series of scandals, citizen shootings, records of internal investigations concerning allegations of officer misconduct. The www.aclu.org/news/RacialEquality/RacialE allegations of excessive use of force, quality.cfm?id ? 16306&c ? 133? (last visit- and/or racial insensitivity.59 In Chicago, a most frequently asserted bases for with- ed Oct. 4, 2004). city plagued by police violence and a holding access to such records, i.e., officer 3. Requests for access to internal affairs series of civil rights lawsuits alleging privacy and the deliberative process privi- records most frequently arise in two con- abusive conduct, a federal judge recently lege, are not appropriately invoked when texts: (1) in discovery, when a civil rights lawsuit is filed alleging excessive use of ordered that public access be provided to used to shield from public scrutiny those records reflecting only the discharge of an force or some other misconduct on the an internal affairs investigation of police part of officers, and (2) when records are brutality, proclaiming that officer’s official duties and those docu- requested under a state’s open records [t]he allegations of police misconduct con- menting the outcome of an investigation. statute. This article discusses only the latter, tained in the disputed files must be exposed to Weighing against state interests in in which the relevancy restriction of civil the light of human conscience and the air of protecting the reputation and morale of discovery rules do not apply. natural opinion . . . [t]he only way to end this police officers who are subject to disci- 4. For an excellent, although dated, arti- syndrome [of taxpayer-funded settlements of plinary sanctions for violating depart- cle on this topic, see Lynne Wilson, The lawsuits alleging police misconduct] is to eval- Public’s Right of Access to Police uate and reevaluate past practices. . . . Some mental policies is the much stronger pub- Misconduct Files, 4:7 POLICE MISCONDUCT of these issues require public debate and appro- lic interest in being able to assess the priate media scrutiny.60 & CIV. RTS. REP. 73 (Jan.-Feb. 1994). thoroughness, impartiality, and correct- 5. See 37a AM. JUR. 2D Freedom of Public review of police internal affairs ness of the police departments’ investiga- Information Acts § 5 (2004). files may well be a prerequisite to foster- tions and conclusions and the propriety 6. N.Y. PUB. OFF. L. § 84 (Matthew ing strong community relations that are of any disciplinary actions taken in Bender 2004). necessary for effective law enforcement. response. Providing public access to 7. HAW. REV. STAT. § 92F-2 (1996); 5 As one California appellate panel stated, ILL. COMP. STAT. ANN. 140/7 (Matthew internal investigation files of police Bender 2004). [I]t is the attitude of the public toward the departments not only promotes public 8. CAL. GOV’T CODE § 6250 (Deering police discipline system that will determine the confidence in the ability of the police “to 2004). effectiveness of the system as an element of police-community relations. A system can be police themselves,” it also builds greater 9. MONT. CONST., art. II, §§ 9, 10. theoretically sound and objective in practice but trust and mutual respect between the offi- 10. See, e.g., CAL. GOV’T CODE § 6254 if it is not respected by the public, cooperation cers in uniform and the public whose (2004); GA. CODE ANN. §§ 50–18–70, –72 between the police and the public can suffer.61 (2004); IDAHO CODE § 9–335 (Michie interests they have sworn to serve. Recently, the Massachusetts Court of 2004); N.Y. PUB. OFF. L. §§ 84, 87(2) (2004); S.C. CODE ANN. § 30–4–40(a) Appeals eloquently articulated the vital Endnotes (Law. Co-op. 2003). But c.f. OHIO REV. role that public access to police internal 1. Jamie Stockwell, Police Reforms CODE ANN. § 149.43 (2004) (limiting affairs files plays in maintaining the Faulted as Slow; Prince George’s Force access to peace officer information but public’s trust: Found Lacking, WASH. POST, Sept. 17, defining such information to include only

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address and identifying information). 1156 (Colo. Ct. App. 1998) (unless informa- (N.D. Ill. 1997); (quotation and citation 11. See, e.g., Griffith Lab v. Metro. tion in government’s hands is “so intimate, omitted); see also Cassidy v. Am. Broad. Sanitary Dist., 522 N.E.2d 744 (Ill. App. Ct. personal or sensitive that disclosure of such Cos., Inc., 377 N.E.2d 126, 132 (Ill. Ct. App. 1988). But cf. Williams v. Superior Court, information would be offensive and objection- 1978) (“The conduct of a policeman on-duty 852 P.2d 377 (Cal. 1993) (finding that law able to a reasonable person,” it is not protected is legitimately and necessarily an area upon enforcement exceptions should be construed by a constitutional right of privacy). which public interest may and should be liberally). 26. See, e.g., Flanagan v. Munger, 890 focused... the very status of the policeman 12. ILL. COMP. STAT § 140/7. F.2d 1557, 1570 (10th Cir. 1989) (“The as a public official, as above pointed out, is 13. HAW. REV. STAT. § 92F-14 (Supp. plaintiffs’ right to privacy claim can be dis- tantamount to an implied consent to inform- 1996). posed of under the first prong of the ing the general public by all legitimate means 14. See, e.g., ARK. CODE ANN. § 25–19– Martinelli test.... Only highly personal regarding his activities in discharge of his 105(c)(1) (Michie 1992 & Supp. 1993); GA. information is protected.”); id. (applying the public duties.”). CODE ANN. § 50–18–72(a)(5) (2004); LA. first prong of Martinelli to internal affairs 31. 265 F.3d 1144, 1155 (10th Cir. 2001). REV. STAT. ANN. § 40:2532 (West 2004); file and finding that “data in files ‘which is 32. Worden v. Provo City, 806 F. Supp. OKLA. STAT. tit. 51, § 24A.7.B.4 (2004); not of a highly personal or sensitive nature 1512, 1515–16 (D. Utah 1992). UTAH CODE ANN. § 632–301(o) (2004). may not fall within the zone of confidential- 33. Burton v. York Cty. Sheriff’s Dep’t, 15. TENN. CODE ANN. §10–7–503 (Supp. ity.’ ”); see also Stidham v. Peace Officers 594 S.E.2d 888, 896 (S.C. Ct. App. 2004). 1996). Standards & Training, 265 F.3d 1144, 1155 34. Mangels v. Pena, 789 F.2d 836, 839 16. HAW. REV. STAT. § 92F–14(b)(4)(v). (10th Cir. 2001) (applying Martinelli tripar- (10th Cir. 1986) (citing Nixon v. Adm’r of Other states’ laws expressly declare that tite test and concluding “we need not Gen. Servs., 433 U.S. 425, 457 (1977); police internal affairs files are exempt from address the second and third factors if the Denver Policemen’s Protective Ass’n v. disclosure. See, e.g., CAL. PENAL CODE first is not met”); Mangels v. Pena, 789 Lichtenstein, 660 F.2d 432, 435 (10th Cir. § 832.7 (Deering 2004); MD. STATE GOV’T F.2d 836, 839 (10th Cir. 1986) (“The legiti- 1981)). CODE ANN. § 10–618 (2004); R.I. GEN. macy of an individual’s expectations [of pri- 35. See, e.g., Cowles Publ’g Co. v. State LAWS § 38–2–2 (2004); VT. STAT. ANN. tit. vacy] depends... upon the intimate or Patrol, 748 P.2d 597, 605 (Wash. 1988) 1, § 316 (2004); WYO. STAT. ANN. § 16–4– otherwise personal nature of the material (“[I]nstances of misconduct of a police offi- 203 (Michie 2003). which the state possesses.”). cer while on the job are not private, inti- 17. See, e.g., IDAHO CODE §9–335(2) 27. Rinsley v. Brandt, 446 F. Supp. 850, mate, personal details of the officer’s life.”); (Michie Supp. 2000). 857–58 (D. Kan. 1977) (quoting Rawlins v. Coughlin v. Westinghouse Broad. & Cable, 18. Several courts have found that internal Hutchinson News Publ’g Co., 543 P.2d 988, Inc., 603 F. Supp. 377, 390 (E.D. Pa. 1985) affairs investigation files are not properly 993 (Kan. 1975)); see also 37A AM. JUR.2D (“A police officer’s on-the-job activities are characterized as personnel files. See, e.g., Freedom of Information Act § 254, at matters of legitimate public interest, not pri- Johnson v. Dep’t of Corr., 972 P.2d 692, 262–63 (1994) (explaining that “disclosure vate facts.”), aff’d, 780 F.2d 340 (3d Cir. 695 (Colo. Ct. App. 1999); Fed. Publ’ns, of materials relating to investigations of 1985); State of Haw. Org. of Police Officers Inc. v. Boise City, 915 P.2d 21, 25 (Idaho alleged misconduct... of public officials v. Soc’y of Prof’l Journalists, 927 P.2d 386, 1996); see also Copley Press, Inc. v. is frequently not considered to be an unrea- 407 (Haw. 1996) (“[I]nformation regarding Superior Ct., 18 Cal. Rptr. 3d 657, 664–65 sonable invasion of the official’s privacy charges of misconduct by police officers in (Cal. Ct. App. 2004) (narrowly construing because investigation into official miscon- their capacities as such... is not ‘highly the scope of CAL. PENAL CODE § 832.7 to duct is a legitimate public concern, and inci- personal and intimate information.’ ”); King exempt “testimony of a percipient witness dents relating to public employment are fre- v. Conde, 121 F.R.D. 180, 191 (E.D.N.Y. to events, or from documents not main- quently found not to be private”) (citations 1988) (“[T]he privacy interest in this kind tained in the personnel file”). omitted). of professional record is not substantial 19. See Whalen v. Roe, 429 U.S. 589 28. In re Stewart, 00-ORD-97 (2000) because it is not the kind of ‘highly person- (1977) (recognizing that individuals’ right (quoting Op. Att’y Gen. 88–25). al’ information warranting constitutional of privacy protected by federal constitution 29. Id. (quoting Op. Att’y Gen. 91–41, at safeguard.”); Obiajulu v. City of Rochester, can be violated by government’s disclosure 5). Notably, however, federal courts apply- 625 N.Y.S.2d 779, 780 (N.Y. App. Div. of certain highly personal and intimate ing the federal FOIA statute have been 1995) (“Disciplinary files containing disci- information). markedly more protective of the privacy plinary charges, the agency determination of 20. 612 P.2d 1083 (Colo. 1980). interests asserted by federal employees who those charges, and the penalties imposed, 21. Id. at 1086. The plaintiff in Martinelli, are the subject of professional disciplinary however, are not exempt from disclosure Jerre D. Malone, sought $325,000 in actual investigations. See James O. Pearson, Jr., . . . [as] ‘personal and intimate details of and special damages and $500,000 in exem- Annotation, What Constitutes an employee’s personal life.’ ”); Stidham, plary damages. “Unwarranted Invasion of Privacy” for 265 F.3d at 1155. 22. Id. at 1091. Purposes of Law Enforcement Investigatory 36. See, e.g., Vaughn v. Rosen, 523 F.2d 23. Id.; see also Berniger v. Denver & R. Records Exemption of Freedom of 1136, 1146 (D.C. Cir. 1975); NLRB v. G. W. R. Co., 139 F.R.D. 175 (D.D.C. Information Act, 52 A.L.R. FED. 181 (2004) Sears, Roebuck & Co., 421 U.S. 132, 1991); Alaska Wildlife Alliance v. Rue, 948 (summarizing cases); Edmonds v. FBI, 272 149–50 (1975); EPA v. Mink, 410 U.S. 73, P.2d 976 (Alaska 1997); Bolm v. Custodian F. Supp. 2d 35 (D.D.C. 2003); Mueller v. 86 (1973); see also City of Colorado of Records, 969 P.2d 200 (Ariz. Ct. App. U.S. Air Force, 63 F. Supp. 2d 738 (E.D. Springs v. White, 967 P.2d 1042, 1053–54 1998); Babets v. Sec’y of Exec. Office of Va. 1999); Office of the Capital Counsel v. (Colo. 1998) (“The primary purpose of the Human Servs., 526 N.E.2d 1261 (Mass. Dep’t of Justice, 331 F. 3d 799 (11th Cir. privilege is to protect the frank exchange of 1988). 2003). But see Cohen v. EPA, 525 F. Supp. ideas and opinions critical to the govern- 24. Martinelli, 612 P.2d at 1091. 425 (D.D.C. 1983) (“The privacy exemption ment’s decision-making process where dis- 25. Id. at 1092 (describing the first prong of does not apply to information regarding pro- closure would discourage such discussion in Martinelli, i.e., whether the claimant has a fessional or business activities.... This the future.”); 5 U.S.C. § 552(b)(5) (1996). “legitimate expectation of nondisclosure,” as a information must be disclosed even if a pro- 37. Martinelli v. District Court, 612 P.2d “threshold matter”); see also Freedom fessional reputation may be tarnished.”). 1083, 1090–91 (Colo. 1980); White, 967 Newspapers, Inc. v. Tollefson, 961 P.2d 1150, 30. Wiggins v. Burge, 173 F.R.D. 226, 229 P.2d at 1053–54; Sinicropi v. County of

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Nassau, 428 N.Y.S.2d 312 (1980). 55. The Kentucky attorney general has investigations, or questionable supervisory 38. See, e.g., Schell v. U.S. Dep’t of concluded that “[i]n weighing the right of practices must be exposed if they exist.”); Health & Human Servs., 843 F.2d 933, 940 individual privacy against the right of the Denver Post Corp. v. Univ. of Colo., 739 (6th Cir. 1988) (“a document is pre-deci- public to monitor the conduct of its ser- P.2d 874, 879 (Colo. App. 1987) (“[A]ny sional when it is received by the decision- vants, we find that complaints of miscon- possible danger of discouraging internal maker on the subject of the decision prior to duct and consequent disciplinary action, or review is outweighed by the public’s inter- the time the decision is made”) (quotations the decision to take no action, are matters of est in whether the internal review was ade- and citations omitted). legitimate public concern which outweigh quate, whether the actions taken pursuant to 39. Id. the privacy rights of the public servant.” In that review were sufficient, and whether 40. See Martinelli, 612 P.2d at 1090. re Stewart, 00-ORD-97 (2000); see also those who held public office . . . should be 41. Compare Wayland v. NLRB, 627 F. City of Portland v. Anderson, 988 P.2d 402, held further accountable.”); Daniels v. City Supp. 1473, 1476 (M.D. Tenn. 1983) (wit- 406 (Or. Ct. App. 1999) (where “the con- of Commerce City, 988 P.2d 648, 652 ness statements are not deliberative in duct involved directly bears on the possible (Colo. Ct. App. 1999) (“[M]embers of the nature) with Lurie v. Dep’t of Army, 970 F. compromise of a public official’s integrity general public have a compelling interest to Supp. 19, 34–35 (D.D.C. 1997) (witness in the context of his public employment see that public entities, when conducting statements that include statements of opin- . . . any invasion of privacy that would internal reviews of [official misconduct] do ion and recommendations are deliberative). result from disclosure is not unreasonable”); so efficiently, and clearly and effectively.”). 42. See, e.g., Welsh v. City & County of Dobronski v. FCC, 17 F.3d 275, 279 (9th 58. See Jones v. Jennings, 788 P.2d 732, San Francisco, 887 F. Supp. 1293, 1302 Cir. 1994) (government employee’s privacy 738–39 (Alaska 1990) (“There is perhaps no (N.D. Cal. 1995) (“ ‘Defendants cannot interests are diminished where protection more compelling justification for public meet their burden simply by asserting, with- might shield “official misconduct”). access to documents regarding citizen com- out empirical support, that officers will 56. Welsh v. City & County of San plaints against police officers than preserv- refuse to cooperate with Internal Affairs Francisco, 887 F. Supp. 1293, 1301 (N.D. ing democratic values and fostering the pub- investigations if their statements are subject Cal. 1995). lic’s trust in those charged with enforcing to even limited disclosure.’ ”) (emphasis 57. Stern v. FBI, 737 F.2d 84, 92 (D.C. the law.”). added) (quoting Kelly v. City of San Jose, Cir. 1984); see also Hawk Eye v. Jackson, 59. See, e.g., supra notes 3, 5. 114 F.R.D. 653, 672 (N.D. Cal. 1987)); 521 N.W.2d 750, 754 (Iowa 1994) (“So 60. Doe v. Marsalis, 202 F.R.D. 233, 238 King v. Conde, 121 F.R.D. 180, 193 long as it is barred from seeing the [internal (N.D. Ill. 2001). (E.D.N.Y. 1988) (“[I]f the fear of disclosure investigation] report, the newspaper [and 61. S.F. Police Officers’ Ass’n v. Superior . . . does have some real effect on officers’ the public] is effectively prevented from Court, 202 Cal. App. 3d 183, 191 (1988). candor, the stronger working hypothesis is assessing the reasonableness of the official 62. Worcester Telegram & Gazette Corp. that fear of disclosure is more likely to action.”); Skibo v. City of New York, 109 v. Chief of Police of Worcester, 787 N.E.2d increase candor than to chill it.”). F.R.D. 58, 61 (E.D.N.Y. 1985) (“Misconduct 602, 607 (Mass. Ct. App. 2003). 43. Martinelli, 612 P.2d at 1090. by individual officers, incompetent internal 63. Id. at 608. 44. Kelly, 114 F.R.D. at 665. 45.Id. 46. City of Colorado Springs v. White, 967 P.2d 1042, 1052 (Colo. 1998) Nominees for Forum Leadership (“[P]redecisional material can lose its protected status if the decisionmaker incorpo- Positions Announced rates the material by reference, or expressly adopts it, in the final decision.”) (citations The Nominating Committee has nominated Richard Goehler of Frost omitted). Brown Todd, in Cincinnati, Ohio, for the position of chair-elect for the 47. White, 967 P.2d at 1053 (citations one-year term commencing August 2005. omitted). 48. Wiggins v. Burge, 173 F.R.D. 226, The Nominating Committee has nominated the following persons to 229 (N.D. Ill. 1997). become members of the Governing Committee for the three-year terms 49. Id. also starting next August 2005: 50. Id. 51. Great Falls Trib. Co. v. Cascade Cty. Peter Canfield Mary Ellen Roy Sheriff, 775 P.2d 1267 (Mont. 1989). Dow, Lohnes & Albertson Phelps Dunbar 52. Demers v. Minneapolis, 468 N.W.2d Atlanta, Georgia New Orleans, Lousiana 71 (1991). 53. See Bozeman Daily Chron. v. Josh Koltun Cory Ulrich Bozeman Police Dep’t, 260 Mont. 218 DLA Piper Rudnick Gray Cary US Belo Corp. (1993) (finding that even though police offi- San Francisco, California Dallas, Texas cer had resigned, the “nature of the alleged misconduct ran directly counter to the police officer’s sworn duty to uphold the The election will be held at the Forum’s Annual Meeting, on January 13, law, to prevent crime, and to protect the 2005, at 9:15 a.m., at the Boca Raton Resort & Club, Boca Raton, public”; and information regarding his Florida, in conjunction with the Annual Conference. behavior should be disclosed). 54. Cowles Publ’g Co. v. State Patrol, 748 The Nominating Committee is comprised of Kevin Goering of Coudert P.2d 597, 605 (Wash. 1988) (explaining that Brothers in New York, New York; Tom Kelley of Faegre & Benson instances of on-duty misconduct “are mat- in Denver, Colorado; and Kelli Sager of Davis Wright Tremaine in ters with which the public has a right to Los Angeles, California. concern itself . . . matters of police misconduct are of legitimate public concern”).

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