Police Records on Misconduct Are Opening Up Elsewhere – Time for D.C. As Well

Fritz Mulhauser | September 29, 2020 | Last modified: October 10, 2020

NOTE: For more on access to police body camera video in D.C., watch a D.C. Open Government Coalition discussion forum held Tuesday, Sept. 29. The recorded session is available here.

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In D.C. a new Police Reform Commission is at work, the D.C. Council is holding hearings on a police reform bill, and police transparency made it onto the front page of The Washington Post print edition last Saturday (26).

In the Post, Hannah Knowles, Mark Berman, and Shayna Jacobs focused on limited information released on serious police misconduct incidents in Rochester, New York City, Louisville, Minneapolis and Tallahassee. They didn’t mention D.C.

In the Washington City Paper, Mitch Ryals three weeks earlier (3) had covered in depth the official denial of his requests for D.C. police complaint records on officers involved in recent serious incidents.

The upcoming reviews of D.C. policing by the Council and the Reform Commission offer the public a chance to consider and prioritize areas in need of fundamental improvement:

• starting with defining the police mission more narrowly and moving funds thus released to others who can better do the non-law-enforcement work and reduce community anger at over-policing;  
• reviewing and updating policy on use of force (including against protesters) and also how police and prosecutors investigate serious incidents (where serious weaknesses and delays were still apparent in the D.C. Auditor’s 2016 follow-up review of the seven-year program of police reform under a Memo of Agreement the MPD agreed to with the Department of Justice in 2001);
• strengthening approaches for early identification of officers at risk of significant misconduct (a task DOJ required in the MOA plan but which MPD never completed; subject of later efforts the Auditor found still unsatisfactory in the  2016 report);
• clarifying the role of the police union in misconduct investigations and any resulting discipline. (On the history of police union advocacy for their members that is sometimes at odds with community goals for policing, see William Finnegan in an August New Yorker piece, “How Police Unions Fight Reform.”)

But faithful adherence to policy is always uncertain in a sprawling police agency with almost 4,000 officers. Even with good policies on the books, the public wants to be sure they’re followed, with more evidence than occasional promises or press releases from high officials, and with prompt explanations when situations go tragically wrong. Camera video is but one tool to understand and deal with what happened.

In general, it is the Coalition’s view that the harms from concealing facts about policing outweigh privacy concerns in releasing such facts. (See a thorough treatment of both sides in this article last year by Cynthia Conti-Cook, attorney at the Legal Aid Society in New York and a 2018-19 fellow at Data & Society.)

Which brings us to the Coalition’s favorite subject—transparency. That’s the steady flow of facts that show whether officers obey the law just as much as they fight crimes–facts that can trigger advocacy for action by elected officials and the agencies they oversee.

The Coalition will outline needed new directions at the virtual Council hearing on police reform on October 15. Public witnesses will be heard 9:00 a.m. to 3:00 p.m., followed by government witnesses. Hearing information is here.

Coalition advocacy is likely to touch on two main areas and include release of new research on policy approaches elsewhere.

Access to body camera video

• Permanent legislation should assure full video publication in the most serious cases.  Prompt release of officers’ names and video in cases of serious uses of force, legislated in July but only as an emergency measure, should be made permanent. Full video (from cameras of all officers present) should be released, and redaction should be greatly diminished to cut costs and save time. The victim veto should be reconsidered.

• Clarify exemptions. Where the public asks for release under FOIA, the exemption during ongoing investigation can be overused, as families have encountered here and as the Post documented in its latest story on other cities. Legislation should clarify the justifiable situations where this may apply. (Lengthy delays in U.S. Attorney and MPD Internal Affairs investigations, documented again in the Auditor’s 2016 report, make this difficult.) Privacy protection for only narrow types of officer information should be set in statute, separate from the case-by-case balancing test in FOIA.

• Make more use of the video and report on it. The Open Government Coalition testified a year ago that the body camera program should be a much more powerful tool of public information and policing improvement. Little has changed. (The MPD report on body cameras, required by law every six months, has not been issued since June 2019.) Public information about the program and uses of the video in officer complaint review, training and research should be greatly expanded.

Access to police complaints and disciplinary proceedings

Legislation is needed to spell out public access to records of complaints against officers and disciplinary proceedings. Problems in D.C. (the MPD is in court here in the District arguing even to keep records secret from a disciplinary hearing that was open to the public, according to another Washington City Paper story in June), together with advances in other states, suggest the agenda.

FOIA doesn’t work. The Ryals City Paper story recounted the writer’s request for D.C. Office of Police Complaints records on complaints and related investigations of 21 officers whose names (along with video) the mayor released last month as the Council directed in the emergency statute in July. The 21 were involved in 10 shooting deaths and other incidents of serious use of force in recent years. The office released one harassment complaint that had been sustained but would “neither confirm nor deny” having any other information on other complaints.

This is par for the course; the complaint agency has for years fully rejected FOIA requests at a rate greater than any other D.C. agency — in 2019, 60 percent — according to the mayor’s annual report on FOIA processing. Its director, Michael Tobin, told City Paper he’s just following the law— exemptions in D.C. public records law allowing officials to decide that an employee’s personal privacy interest outweighs any public interest in complaint records. Such interpretations have been upheld for years in opinions on appeals to the Mayor’s Office of Legal Counsel (and in cases brought under federal FOIA law).

According to Ryals’ reporting, Tobin also cited the police union contract as limiting release of complaints. But the contract requires only that official personnel files be maintained “as prescribed by governing District regulations.” In response to the Coalition’s request under the Freedom of Information Act for records showing any specific union contract limits on OPC release of complaints, OPC legal counsel Alicia Yass cited none. In a telephone interview, Yass told the Coalition that the Office denials are based solely on D.C. FOIA privacy exemptions–those are the “governing regulations” mentioned in the contract.

But director Tobin, appointed six years ago, also told the City Paper he now has second thoughts. The Coalition would welcome his testimony at the October hearing. Ryals writes:

Tobin agrees that the interpretation of FOIA law in the District is too restrictive for police records. He says he supports tipping the scales more in favor of the public’s interest when it comes to disciplinary records specifically….“It would add a lot to community trust if the community was aware what kind of discipline was being handed out to MPD officers,” he says. “Right now, I don’t think we strike a very good balance between those things.” 

Change is coming. Responding to dramatically increased demand for information on policing, legislatures in California, Colorado, Connecticut and New York have revamped laws on police disciplinary records to spell out required public access. No more leaving that to be puzzled out in years of court battles over a patchwork of public records law, regulations about police personnel files, internal agency redaction policy, or union contracts. Officials in these and other states seem to agree, police conduct is public business and privacy arguments should no longer bar access. That’s also what the D.C. Superior Court held in rejecting the initial stage of a police union lawsuit to stop the July emergency law calling for release of body cam video in serious cases.

Difficult choices that will need to be made include:

• what officer offenses are covered and which specific records,
• what types of complaints and disciplinary situations should become public (all or only serious violations) and what outcomes (all or only those where allegations are sustained),
• what personal information may be redacted,
• what delays are permissible (how long and for what reasons, with what explanation),
• what fees if any may be charged,
• what appeal is available if there are concerns police agencies aren’t following the law,
• what the penalties will be for noncompliance, and
• what funds are available to carry out the new transparency law—for information technology, staff and training.  

Results can be dramatic, such as in New York City, where a file of 324,000 complaints against 81,000 officers came to light after the legislature ended that state’s years of secrecy. Opposition can be strong and has continued after legislation, for example in California where 170 lawsuits were active last year to block release required January 1, 2019. Some police departments there destroyed files rather than comply.

If you have information on police transparency in D.C., address the Coalition at info@dcogc.org. The Coalition looks forward to engaging with the community, the Police Reform Commission, and the D.C. Council as the conversation on open government principles applied to law enforcement goes forward.