Coalition Keeps Up Advocacy for Opening D.C. Police Misconduct Records

Fritz Mulhauser | December 3, 2021 | Last modified: January 1, 2022

UPDATE: Many problems continue to plague access to police discipline records in Maryland, according to a new report by Justin Fenton and Lilly Price in the Baltimore Sun December 30, echoing the Washington Post’s test results a month earlier discussed in the blog post below. Their reporting shows again how police departments are exploiting parts of the law to deny records completely (since the law allowed an exemption if release is “not in the public interest”), to postpone release because of investigations, or exempt “technical infractions” (a new category without clear definition).  Six-figure fee bills are already under challenge in court. Even where departments are willing to comply, they delay, citing “overbroad requests” and ”logistical challenges” in processing files often hundreds of pages thick. Maryland legislators who passed “Anton’s Law” this year to open records October 1 were surprised at the newspaper findings and admitted, as one state senator told the Sun, “it’s going to be up to us in the legislature to see that measures we pass are adhered to.”

D.C. Open Government Coalition testimony and proposed amendments to the pending D.C. legislation address these issues. With clarity at the outset, delays and litigation can be avoided. The Coalition looks forward to taking part in the revision process leading up to passage later this year.

The Open Government Coalition testified in October to the D.C. Council Committee on the Judiciary & Public Safety in support of opening records of D.C. police misconduct investigations and discipline. The Police Reform Commission recommended this transparency step in its final report in April (discussed here) and the Council chairman included it in his police accountability bill, B24-0356, introduced in July. The Coalition also provided suggested amendments to the new bill.

Most witnesses at the hearing (which included other bills as well) supported the reform bill by addressing broad themes of needed improvements in culture and focus to rebuild trust shaken by the George Floyd murder in 2020 and related incidents nationwide.

The bill reshapes the oversight of two D.C. forces, both Metropolitan Police and Housing Authority police, in three ways:

• adding a new Deputy D.C. Auditor for Public Safety with authority to review misconduct and use of force investigations;
• upgrading the existing units that handle complaints to make them a more empowered Police Accountability Commission and Office with authority to review not only complaints but police policy generally; and
• opening records so the public can judge facts of misconduct and whether official responses seem sound.

Under the records segment of the bill, records of misconduct investigations and any resulting discipline would be public, without regard to FOIA exemptions used for years to deny requests. INvestigations of all types of conduct issues are covered, whether brought to light in a civilian compliant or internal action of the agency, and whether a complaint or charge is sustained or not.

Coalition testimony drew on the experience of other states that have opened their police records, including New York and California, calling for improved treatment of many details such as:

• records covered (including how far back),
• redactions allowed,
• limits on delays during active investigations,
• fees,
• deadlines, and
• what is to be included in the public database also called for in the bill.

The Washington Post’s Steve Thompson reported November 24 on 150 Maryland police agencies’ responses to requests for their discipline records. Those formerly were “personnel records,” a category exempt from access under the state’s open records law. They became accessible under “Anton’s Law” effective October 1 following passage over the governor’s veto this summer.

But the rest of the exemptions in Maryland state public records access law can still apply. Maryland ACLU attorney David Rocah told Thompson, “we’re seeing so far in general … frequent attempts by police agencies to evade the law… Either by relying on overbroad [exemption] assertions that the release of investigatory records would not be in the public interest or through exorbitant fees for the production of the records.” Thompson detailed how the Post encountered both in its probes. Prince George’s County has refused to release any records under the act, according to October reporting by Allison Mollenkamp in Maryland Matters.

The Coalition’s suggestions for the pending bill aim to strengthen the law so that it is as clear as possible on such details of record retention and release.

Opponents of police record release in other states have gone to court challenging ambiguous terms in bills they failed to stop as in prior decades in the legislature or at the governor’s desk. The Los Angeles Times in June 2019 reported California police departments “charging high fees for records, destroying documents and even ignoring court orders to produce the files” six months after new state law ended decades of secrecy.

The committee schedule for marking up the bill is not yet known.