Denver — For the second year in a row Rep. James Coleman, D-Denver, is sponsoring a bill to compel police agencies to disclose internal affairs investigations. House Bill 19-1119 was introduced on Jan. 16 and is assigned to the House Judiciary Committee.
Police internal affairs reports documenting complaints against law enforcement officers are supposed to be available to the public under current Colorado open records laws.
But two recent reports out of the University of Denver’s Sturm College of Law reveal that it is very rare for Colorado law enforcement agencies to release these files, and that other states with similar laws aren’t experiencing problems when they do so. Coleman’s bill removes the authority of a law enforcement agency to deny inspection on the basis that “disclosure of such records would be contrary to the public interest.”
This is the justification used in almost every denial by Colorado law enforcement agencies. This is despite a 2005 Colorado Supreme Court case that requires agencies to perform a balancing test that takes into consideration things like personal privacy interests, confidential information and “any other pertinent considerations relevant to the circumstances of the particular request.”
Coleman’s bill mandates that any closed investigation “related to a specific, identifiable incident of alleged misconduct involving a member of the public, the entire investigation file, including the witness interviews, video and audio recordings, transcripts, documentary evidence, staff recommendations, and final departmental decision” be released on request.
Certain personal information like Social Security and bank account numbers and information that might impair ongoing criminal investigations, or reveal the identity of confidential informants, must be redacted before the files can be released.
A 2018 report by Sturm College of Law Associate Professor Margaret Kworka, “Access Denied: Colorado law enforcement refuses public access to records of police misconduct” confirms that it is currently almost impossible for citizens to find out about police misconduct internal affairs investigations.
The report says, “Although the Colorado Supreme Court has mandated that law enforcement records custodians perform a balancing test on a case-by-case basis to decide whether to release these files, custodians generally deny all requests for files irrespective of the nature of alleged misconduct or the outcome of the investigation.”
It goes on to say, “The researchers were ultimately unable to obtain a single complete internal affairs file from any jurisdiction included in the study. The vast majority of agencies denied outright the request or failed to respond. Furthermore, the two isolated jurisdictions that offered to process the request assessed cost-prohibitive fees for processing.”
The only recourse for citizens and the media who are denied access is to file an expensive lawsuit in District Court to compel release of the files.
Police unions and law enforcement agencies opposed a similar bill in 2018. They complain that releasing the files is a violation of the privacy rights of officers and would inhibit witnesses from testifying in internal affairs investigations.
That bill was substantially rewritten to remove language requiring release of the records, replacing it with language merely encouraging their disclosure. The bill was killed in the Senate.
A Jan. 2018 report by Brittany Garza, a law student at the Sturm College of Law published by the Colorado Freedom of Information Coalition (CFOIC) examined 14 states with constitutional, statutory or court-derived requirements for the release of such records: Arizona, Connecticut, Florida, Georgia, Maine, Minnesota, Montana, North Dakota, Ohio, Tennessee, Utah, Washington, West Virginia and Wisconsin.
California also enacted a law effective Jan. 1 that requires the release of reports on sexual misconduct, dishonesty in investigative reports and police use of deadly force. But those reports can only be released 18 months after the incident. That law is being opposed by California police unions who are demanding that it only apply going forward and not to past investigations.
Garza found that while the quality of the responses to her requests for ledgers or lists of investigations and the quantity of data received when specific reports were requested did vary, all of the agencies she surveyed provided substantive information at a reasonable cost. The time required for response was an issue in some cases.
Garza also wrote, “The arguments advanced by opponents of House Bill 18-1404 – that releasing internal affairs files to the public will make internal affairs investigations ineffectual – is belied by the experience of several states where police departments operate under regimes of transparency.”
Jeff Roberts, Executive Director of CFOIC said, “We think that there is a public interest in how law enforcement does its job. When officers are investigated for allegations of misconduct then the public ought to be able to know what the results are and how the investigation proceeded, especially in cases where there are settlements.”