ABOVE PHOTO: J. Vasquez, a representative with the Communities United For Restorative Justice, speaks in front of the state Capitol in Sacramento, Calif., June 14, 2023. Vasquez is part of a coalition that is criticizing the California governor’s administration over a proposed change to a 2021 landmark law — a change that could make it harder to access police misconduct records. (AP Photo/Trân Nguyễn)
But the records in most states remain largely confidential
By Amanda Hernandez
STATELINE.ORG
Faced with growing calls for the public release of police disciplinary records, lawmakers in almost every state have grappled with how to balance revealing law enforcement misdeeds and protecting officers’ privacy and safety.
Fueled by public outrage over the 2020 murder of George Floyd by a Minneapolis police officer and other high-profile incidents of police violence, state policymakers have offered a variety of police oversight and transparency bills.
Between May 2020 and April 2023, lawmakers in nearly every state and the District of Columbia introduced almost 500 bills addressing police investigations and discipline, including providing access to disciplinary records, according to the National Conference of State Legislatures. Sixty-five of the bills have been enacted.
Delaware in June became the most recent to pass transparency legislation, expected to be signed into law this month. California, Colorado, Illinois, Massachusetts, Maryland and New York also are among the states that have opened police disciplinary records to the public in recent years.
But police records in most states remain largely confidential or have some release restrictions. And even in states with open records laws, advocates seeking records have faced barriers, leading to lawsuits.
Advocates for transparency argue that the release of disciplinary records empowers residents, journalists and civil rights activists to identify patterns of misconduct and hold officers accountable.
“Police misconduct records should be available to the public in most situations, if not all situations, because these are folks who have a lot of power and authority,” said Lauren Bonds, executive director of the National Police Accountability Project, which advocates for more transparency. “They have the power to lawfully take a person’s life. The stakes are just so high when there’s a police officer who’s got a lengthy record of misconduct.”
But some police unions and law enforcement organizations have raised concerns about officer safety and privacy, with names and other identifying information made public. They emphasize that the focus should be on serious misconduct rather than minor infractions like being tardy, worry about false accusations and want officers to have due process.
“What’s included should be substantiated. It should be included only after the officer was provided due process, and it should be significant misconduct,” said Bill Johnson, the executive director of the National Association of Police Organizations, in an interview with Stateline. He said that includes an officer having the opportunity to respond to allegations and having a “neutral fact finder” investigate.
“If it’s going to be something that’s useful, where you are safeguarding the public against persons who should not be in law enforcement, you have to be careful about, ‘What are we really talking about here? What gets included and how do we know that we can rely on this?’”
Ongoing debate
Even states that have recently enacted laws face ongoing debate.
In Maryland, where records have been available through public records requests since October 2021, public interest groups and news organizations have filed lawsuits citing exorbitant fees, missed deadlines and outright denials of records requests by law enforcement agencies.
And in New Jersey, the state Supreme Court issued a ruling in June that requires individuals who sue for public records to pay the entire cost of their own attorneys, regardless of the case’s outcome. Public interest and transparency advocates fear the decision will create additional hurdles for people seeking access to police records, including disciplinary reports and dashboard camera videos.
Delaware is the latest state to pass legislation that will require substantiated reports of misconduct, such as use of force that results in serious physical injury and sexual assault or harassment, to be reported to the state’s Criminal Justice Council and posted publicly on the council’s website.
Democratic Gov. John Carney is expected to sign the legislation into law on Aug. 7, according to state Rep. Melissa Minor-Brown, a Democrat who sponsored the bill.
“After we witnessed the situation that happened with George Floyd and we saw the public outcry, we knew that something had to be done,” Minor-Brown said in an interview with Stateline. “We owe it to the community. I owe it to my son, to my daughter, to my husband, to my colleagues, to those who do not have a seat at the table, to those whose voices aren’t heard, to those who have experienced injustice.”
It took lawmakers about three years to push through the legislation. While transparency advocates supported previous versions of the bill, they opposed the current version, arguing that it falls short of achieving full transparency and external oversight. The ACLU of Delaware noted, for example, that police departments will decide whether to investigate complaints and that only specific categories of misconduct are covered.
“It does not necessarily meet the standards that we think is enough to increase trust between communities and the police,” said Javonne Rich, the group’s policy and advocacy director, in an interview with Stateline. “All the information that will be made public will be what the police department wants to be made public.”
But Delaware Attorney General Kathy Jennings, a Democrat, endorsed the new bill, as did representatives from several police agencies. During a Senate Judiciary Committee hearing in June, a witness read a supportive statement from Jamie Leonard, who leads the Delaware Fraternal Order of Police union, WHYY reported.
“We wanted to lift the veil of secrecy that so many believe surrounds our profession,’’ Leonard’s statement said, according to WHYY, the Philadelphia public radio station. “We want to provide access to information that includes names on cases where we believe our officers fell short of the standard expected by our agencies, by other officers, and by our community.”
Minor-Brown, the Delaware state representative, said that although the bill may not entirely meet advocates’ expectations, it represents a “huge step in the right direction.”
“I hear what the advocates are saying and there’s definitely going to be some space for tweaking,” Minor-Brown said. “We could have not moved forward based off of some of the advocates feeling like it wasn’t enough, and then we could have gotten nowhere. I was not willing to not move anywhere because we weren’t at 100%.”
California concerns
In 2018, California made records on officer use-of-force incidents, sexual assault cases and acts of dishonesty available through public records requests. Another law enacted in 2021 established a decertification process for law enforcement officers involved in serious misconduct.
But this year, a provision enacted in the state’s budget shifts back to local police departments the responsibility of releasing their records, instead of having the state’s Commission on Peace Officer Standards and Training do so.
The measure, backed by Democratic Gov. Gavin Newsom as a cost-saving measure in the face of a large budget deficit, drew strong criticism from criminal justice and press freedom groups, The Associated Press reported.
The state commission backed the bill. The measure “continues to ensure public access to police misconduct records in a way that improves efficiencies, reduces duplicative efforts, and saves substantial taxpayer money,” wrote Meagan Poulos, the commission’s legislative liaison and public information officer, in an emailed statement.
But transparency advocates argue that the public should have a central clearinghouse for the records and that some local police departments may resist releasing such information.
“There has been significant resistance to disclosure. Others have been more proactive,” said David Loy, the legal director of the First Amendment Coalition, a nonpartisan group that aims to protect free speech rights, in an interview with Stateline. “It impacts the entire community. … Information is power, and without transparency, there’s no accountability at any level.”
Some police unions and law enforcement organizations have raised concerns about officer safety and privacy in California and nationwide. They fear that releasing unrestricted personnel records, which may include names and other identifying information, could expose individual officers to undue scrutiny and even endanger their safety and professional reputation.
“We understand that’s not the intent of why these things are getting released, but it is an unintended consequence of releasing names. … They could be doxxed, they could be harassed, there could be protests in front of their house. And because of the nature of the work we do, it’s very concerning,” said Lolita Harper, the executive director of the Sheriff’s Employees’ Benefit Association and a former detective for the San Bernardino County Sheriff’s Department, in an interview with Stateline.
Many law enforcement groups recognize the importance of accountability and transparency in fostering community trust and say that making disciplinary records accessible plays a significant role in achieving that goal.
“The utmost thing is to have that trust with the public, so with the specifics that at least the California legislation requires … we can understand that compromise with where the legislation was coming from and if that helps the public to have more trust than we understand it,” Harper said.
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