Internal investigation records

Gaining access to internal investigation records after police have concluded an investigation into allegations of misconduct is a difficult issue in many states.

In Maryland, this issue is currently before before the state high court. On Oct. 1, The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in the Maryland Court of Appeals in Maryland Department of State Police v. Maryland State Conference of NAACP Branches. The NAACP in Maryland filed a records request to obtain internal investigation records into allegations of racial profiling. The department denied the request. The dispute concerns the state’s open records law, which exempts personnel records, but it is not clear whether internal investigations into individual officers falls within the scope of the term. This is the crux of the issue in many states: When an investigation has concluded, are the records open or does another exemption apply?

In most states, the question of whether or not to release internal investigation records is determined through a balancing of interests, performed either by the records custodian or by a judge, between the public benefits of disclosure and the privacy rights of the officers involved. Most states that perform a balancing test have found that the public interest in holding police accountable for their official conduct outweighs any claimed privacy interests. These states include, for example, Alaska in Jones v. Jennings, Georgia in Fincher v. State of Georgia, South Carolina in Burton v. York City Sheriff’s Department and Utah in Worden v. Provo City, among others.

A common thread running through these cases is the public interest of creating and maintaining trust between the public and the police. Massachusetts, Wisconsin and Georgia courts emphasized the need for openness to foster public confidence. In Wisconsin, the court in Isthmus Publishing Co. v. City of Madison Police Dep’t, held that police have an “awesome responsibility” and the “interest of society in scrutinizing the uses to which police personnel put their powers weighs more heavily” than any privacy interest individual officers may have.²

Steve Zansberg, a partner in the Denver office of Levine Sullivan Koch & Schulz L.L.P., has argued many cases involving access to police internal investigation records. He said that the Massachusetts Court of Appeals expressed the issue best in Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester when it held that allowing the internal investigation materials to be exempt would negate the stated purpose of having internal investigations: to instill public confidence in the police force.

“If the whole process is shrouded in secrecy, it’s counterproductive,” Zansberg said. “It’s not only necessary to allow the public to assess the conduct of the [accused] officer, but also to allow an assessment of the quality of the investigation into alleged misconduct, especially when there is a finding of no fault.”

Other courts, like the Washington Supreme Court in Cowles Publishing Co. v. State Patrol, have found that there is no privacy right for police officers when they act in their official capacity. Police officers are public servants and public employees on all levels have a lower expectation of privacy about records that reflect how they conduct government business, Zansberg said. And courts are generally reflecting that belief, he added.

Despite what Zansberg called a trend towards openness, there are still a significant number of states that limit access to these records.

For example, Vermont makes police internal investigations confidential, exempting a “disciplinary investigation by any police” with only limited information made public. The Ohio Supreme Court held in Ohio Patrolmen’s Benevolent Association v. City of Mentor that internal investigation records were exempt from open records laws under existing exemptions for ongoing investigations to the extent that the documents would reveal the identities of uncharged suspects. Further, the North Carolina Supreme Court held in News and Observer Publishing Co. v. Poole that any record that involves disciplinary actions, suspensions or terminations is exempt under the personnel files exemption to the state public records law.

The New Hampshire Supreme Court interpreted its public records statute to exclude internal investigation records in Union Leader Corp. v. Fenniman. “These files plainly ‘pertain to internal personnel practices’ because they document procedures leading up to internal personnel discipline, a quintessential example of an internal personnel practice,” the court held.

While the language in the New Hampshire statute appears ambiguous, the court found that the legislative intent was to keep the records out of the public eye and held that a balancing test to determine “whether the benefits of nondisclosure outweighed the benefits of disclosure” was inappropriate because the records are “categorically exempt.” The case was brought by a newspaper that already had the results of the investigation, but wanted access to the documents collected during the process.

Most states have a personnel records exemption to their open records law. A few states have statutorily opened these records or not exempted personnel records at all. Tennessee makes law enforcement personnel records open, subject to minor exceptions. Illinois has a statute that negates any privacy claim in records involving the public duties of public employees. North Dakota has no personnel record exemption at all, and the state Supreme Court has twice held that personnel files are public records.

Zansberg approves of those states that have adopted a balancing test to determine openness. He says that there are some records, in rare cases, that should be shielded, like financial information or the identity of undercover officers. However, he thinks that the balancing test should start with a strong presumption of openness and that some courts fail to give the proper weight to the public interest.

In the end, disclosing internal investigation records benefits all sides, Zansberg said. “To keep this information under wraps is a disservice. It does more damage to police in their ability to engage the community. It makes citizens less likely to cooperate and assist in investigations.”