TRANSPARENCY TUESDAY: Investigating how the investigators investigate the investigators -- got that?



A Maryland appeals court is being asked to decide whether the public can have access to the records of an internal investigation into a misconduct complaint against a state trooper. It's the latest in a series of cases across the country about how much  police must disclose when the investigative microscope turns inward on them.

In recent years, courts have been relatively receptive to requests for access to police internal investigative files:

  • Last year, the Washington Supreme Court granted journalists access to the investigative file in the case of a Bainbridge Island, Wash., police officer who had been accused of sexually assaulting a motorist after a traffic stop -- over the objection that disclosure invaded the officer's personal privacy since the case was dropped without criminal prosecution.
  • An Illinois appeals court ruled in 2009 that citizen complaints against a police officer were subject to public disclosure, because Illinois law exempts only "personal" information in personnel files, and misconduct complaints are a matter of public interest. "Not every scrap of paper that enters a personnel file necessarily is personal information," the court ruled.
The Maryland Court of Special Appeals will hear arguments Oct. 4 in the case of Teleta Dashiell, who filed a complaint in 2009 alleging that an off-duty state patrol officer left her a voice mail message and -- apparently thinking he'd ended the call -- made a racially offensive remark. The Maryland State Police told Dashiell that the complaint had been deemed to be well-founded -- but that's all. No information as to how, or whether, the officer was punished.

The state claims that all other information about the case is exempt from Maryland's Public Information Act because of exceptions that cover investigative records, personnel records and internal agency communications. A trial court sided with the State Police Department, ruling that all of the requested documents were confidential personnel records. The ACLU of Maryland, supporting Dashiell, argues the documents are instead "investigative" records that -- unlike personnel records -- become presumptively accessible to the public once a case has ended.

According to a brief filed in the Dashiell case, 22 states have statutes explicitly making police internal investigative files accessible to the public after an investigation is complete. (The Reporters Committee for Freedom of the Press has a printable guidebook that, while several years old, is a useful starting point for researching which police department records are legally subject to disclosure under each state's law.)

For college journalists, investigating the performance of police can start with a simple "process story" -- asking whoever's in charge of public safety to walk through the procedure that is used if a citizen lodges a complaint against an officer, or if misbehavior comes to light in some other way. (If there is no procedure, that itself may be newsworthy.) Remember that other agencies -- including the local district attorney or state's attorney -- may also maintain files if the complaint against the officer rises to the level of a crime, and their files too should become accessible once the investigation is concluded.

Journalists often get the "ongoing investigation" runaround when seeking records from police, who'll refuse to release documents indefinitely for a case that never seems to close. That, too, may be newsworthy -- if police open investigations into citizen complaints but never close them, and never suspend or remove the officer while the investigation is supposedly still pending, it's legitimate to ask why.

Tagged: public records, Transparency Tuesday