By Jeffrey A. Roberts
CFOIC Executive Director
Fourteen months before Colorado lawmakers passed the sweeping law enforcement accountability and transparency bill recently signed into law by Gov. Jared Polis, they approved a measure to shine a light on how police departments police themselves.
House Bill 19-1119 was groundbreaking, introducing a statewide standard for the disclosure of records on completed internal affairs investigations. Before its enactment, nearly all sheriff’s offices and police departments in Colorado routinely rejected requests for internal affairs files — either with a blanket policy or a finding that disclosure would be “contrary to the public interest” — leaving the public “largely in the dark with regard to allegations and investigations of police misconduct,” according to a 2018 study by the University of Denver’s Sturm College of Law.
Since April 2019, when the new law went into effect, journalists have been able to obtain some disciplinary records that most agencies would have kept confidential in the past. Last fall, for example, The Greeley Tribune requested and received the summary findings of an internal investigation involving a Greeley police officer who wrongfully accused a woman of harassment and assault.
But incidents in Colorado and elsewhere show the limitations of HB 19-1119 as a tool of transparency, accountability and for building trust between law enforcement agencies and the communities they serve. More could be done to ensure the public knows when officers are accused of misconduct or of using excessive force, how those allegations are investigated and whether and how discipline is imposed.
Journalists who cover criminal justice matters are grateful for the access provided by HB 19-1119, but they can be frustrated by its narrow scope. The law — the result of legislative compromises — applies only to records “related to a specific, identifiable incident of alleged misconduct involving a member of the public” while an officer is in uniform or on duty.
“You have to know about a specific incident to request the records,” Denver Post reporter Elise Schmelzer told the Colorado Freedom of Information Coalition. “You don’t know what you don’t know.”
Because it is worded so specifically, the Colorado statute does not guarantee the public will see the disciplinary history of someone like Derek Chauvin, the Minneapolis police officer who knelt on George Floyd’s neck for nearly eight minutes. Although the Aurora police department quickly released its internal affairs report on the officers who mocked the killing of Elijah McClain in photos, that incident may not fit the disclosure requirements of HB 19-1119 because the officers were not “interacting with a member of the public.”
While the Denver Department of Public Safety is an outlier — regularly providing the disciplinary records of police officers and sheriff’s deputies in response to requests — and the Aurora police department is providing more information than in the past, other Colorado law enforcement agencies have taken a strict-constructionist view of HB 19-1119’s statutory language.
When a reporter last year asked the El Paso County Sheriff’s Office for case numbers and summaries of all internal affairs investigations initiated and completed since the bill’s effective date, she was told her request was “vague” and did not “meet the specificity” as defined by the language of the bill.
Earlier this month, the Fort Collins Police Department denied a reporter’s request for a log of complaints filed since the effective date of HB 19-1119 because the request did not identify “a specific incident,” nor was it limited to “internal investigations involving a member of the public.”
But even some requests citing specific incidents have been rejected. When journalists asked a police department for internal affairs records on officers who had fired their weapons on dates they specified, they were told the incidents did not involve allegations of misconduct and, therefore, were outside the scope of the new law. In January, the town of Severance denied a reporter’s request for records related to the suspension of the police chief and the departure of a sergeant, saying the complaints against them “were generated by internal sources and … had nothing to do with an external complaint from a citizen, or more specifically alleged misconduct involving a member of the public.”
Any requests for disciplinary files deemed not to fall under the provisions of the 2019 statute are subject to the Colorado Criminal Justice Records Act, which gives law enforcement agencies considerable discretion regarding the release of most of their records. Disclosure may be “contrary to the public interest” if the agency has conducted a balancing test of factors laid out in a 2005 Colorado Supreme Court ruling, Harris v. Denver Post.
One of those factors is “the public purpose to be served in allowing inspection.” By enacting HB 19-1119, the legislature determined that the public purpose is paramount once an internal affairs investigation is complete, and no balancing test is necessary.
But the public should be informed, regardless of whether someone knows to request a specific file.
“Internal affairs secrecy contributes to the ‘code of silence’ or ‘blue wall,’ by creating the expectation that things will be kept in house and away from objective outsiders,” Denver District Court Judge Catherine A. Lemon wrote in a 2005 ruling against the Denver police department. “Open access to internal affairs files enhances the effectiveness of internal affairs investigations, rather than impairing them. Knowing that they will be scrutinized makes investigators do a better job and makes them and the department more accountable to the public.”
Following that ruling and others, Denver opened public access to the internal affairs records of police officers and sheriff’s deputies. Multiple news organizations now make regular requests for any disciplinary letters and orders, which include detailed summaries. If someone asks for additional records, or records of internal investigations that did not lead to disciplinary actions, those will be provided, said Mary Dulacki, deputy director of Denver’s public safety department.
“I understand the concerns for wanting to respect the employee’s rights,” Dulacki told CFOIC. “I totally get that. But you also have to recognize there is a great public interest … in how law enforcement handles and investigates their own and how they are disciplined. That’s part of being a public employee.”
Last month, New York Gov. Andrew Cuomo signed the repeal of a long-standing provision of the state’s civil service law that let police departments shield misconduct records from public scrutiny. In response, cities including Utica, Rochester and New York City announced they will create online databases of officer disciplinary records, eliminating the need for public records requests.
Colorado’s legislature could follow suit by at least requiring all law enforcement agencies to do what Denver has been doing for the past 14 years.
Follow the Colorado Freedom of Information Coalition on Twitter @CoFOIC. Like CFOIC’s Facebook page. Visit CFOIC’s legislature page to track bills in the General Assembly that could affect the flow or availability of information in Colorado.