Documents in the Dark

Privacy concerns can keep sexual harassment investigations hidden from the public

From the Fall 2003 issue of The News Media & The Law, page 32.

By Grant Penrod

When allegations of sexual misconduct by Pennsylvania state troopers came to the attention of The Philadelphia Daily News, the paper attempted to gain access to the police internal investigatory reports. Its requests were denied. The reason cited: privacy.

Yet even after a lawsuit, Haber v. Evans, the Daily News still only won redacted versions.

Judge Cynthia M. Rufe of the U.S. District Court in Philadelphia ruled that the documents concerning the state troopers were not public under Pennsylvania’s Right-to-Know Act because they were covered by an exemption for internal agency investigations. She looked at the state’s open records law in determining whether to open the records in the case. Rufe did grant access to redacted versions of the reports as court records, balancing the strong presumption of access against “legitimate privacy concerns.”

The question of access to information about sexual harassment investigations brings into conflict the interests of individual privacy and government accountability to the public. Details of sexual harassment can be embarrassing and stigmatizing, not only for an alleged harasser and the public agency he or she works for, but also for the victims and witnesses who must relate the details of an often-humiliating experience. However, the public has an interest in knowing about the misbehavior and character of its public officials — highlighted by the scandals surrounding former President Bill Clinton, Paula Jones and Monica Lewinski — as well as how government agencies handle allegations of wrongdoing by public employees.

They are interests courts find difficult to balance.

“The factors that weigh in favor of disclosure include the fact that the named defendants are public officials and that the records are of great public importance,” Rufe ruled.

Equally important, Rufe wrote, is the privacy of the victims, witnesses and troopers against whom charges had been withdrawn or shown to be unfounded. Only the names and identifying information about troopers who were found guilty were left intact in the reports she ordered released to the Daily News.

“While the incidents may be extremely important to the public,” Rufe held, “the alleged victims are not responsible for the public attention that the case has received.”

Furthermore, “While the officers who are the subject of those General Investigation Reports are public officials, and the public has a strong interest in learning the nature of allegations against them,” Rufe wrote, “the public has less of an interest in learning the identities of the officers who have not been adjudged to have committed the alleged acts.”

For journalists looking to cover all stories of public interest, it’s also a delicate balancing act they would rather perform alone.

When Daily News reporter Nicole Weisensee Egan was looking into sexual harassment allegations against a specific state trooper, she found that internal investigators ruled the allegations to be unfounded. And yet, Egan said, the trooper later plead guilty to that “unfounded” charge.

“It makes you question the whole process,” Egan said.

After reporter Alaine Griffin of The Hartford (Conn.) Courant requested the investigative reports relating to allegations of sexual harassment by former Deputy Police Chief Ronald E. Lee, the officer immediately fought the release of the documents. In arguing at a freedom of information hearing and later in court, Lee’s lawyer, M. Hatcher Norris, said the information should not be released because it was of a “very personal nature.”

“It was not something that should be disclosed,” Norris said. According to the Courant, Lee argued before the FOI Commission that release would “cause more scandal, humiliation and embarrassment.”

Both the commission and the court rejected that argument and ordered the reports disclosed.

“We do understand the need for privacy in some matters,” Griffin said, noting governments often try to conceal records by citing personnel rules.

However, “a lot of times it just seems like a stalling tactic,” she added. “Taxpayers have a right to know.”

In some instances, public bodies will try to bypass FOI requirements altogether, claiming they cannot disclose information under a confidential settlement agreement with the victim. According to the Milwaukee Journal Sentinel, Thomas Schrimpf, who represents a Wisconsin school administrator who settled a sexual harassment claim, argued that disclosure of such an agreement would be unfair. He said his client never admitted to the accusations or had an impartial hearing before settling, and disclosure would harm his client’s future employment opportunities.

Schrimpf declined to comment for this article because a lawsuit over production of the documents is still pending.

But confidentiality agreements are not always successful at blocking access to public documents. The Supreme Court of Pennsylvania, citing similar decisions in Alaska, Iowa, Maine and Ohio, ruled in early October that a confidentiality agreement does not nullify a public body’s duty to disclose documents under the state’s open records law.

“A public entity may not enter into enforceable promises of confidentiality regarding public documents,” wrote Justice Sandra Shultz Newman, in Tribune-Review Publishing Co. v. Westmoreland County Housing Authority.

When faced with a denial of records, the first thing a reporter should do is check the state’s open records law, FOI Act experts say. An exemption the public official is claiming may not actually apply. But even when it arguably does — if the open records statute merely permits, but does not require, the withholding of documents — simply noting that disclosure would be in the public’s interest may lead you to prevail.

If the public body will not release the records, a reporter should appeal. After Nancy Flake of The Courier, in Conroe, Texas, requested records relating to sexual harassment claims against two school district officials, she was twice told that the records did not exist before finally learning from the district that the records were not open. She appealed to Texas Attorney General Greg Abbott, who, over the school board’s objections, ordered the records released.

Ultimately, persistence may be the ultimate key to accessing sexual harassment investigatory records. Kurt Heine, editor at The Daily News, says Egan was finally able get sources for her state trooper story by sticking with it denial after denial.

Said Heine, “Every organization has people who really want to talk, but don’t know it yet.”