By Jeffrey A. Roberts
CFOIC Executive Director
Following three years of failed bills, state lawmakers in 2021 finally agreed on statutory language to address the trend among Colorado law enforcement agencies to fully encrypt their radio communications.
A provision inserted into police accountability legislation requires agencies to create a “communications access policy” for letting local news media outlets listen to primary dispatch channels “through commercially available radio receivers, scanners, or other feasible technology.”
But a year after House Bill 21-1250 was signed into law, reporters still can’t tune into Denver and Aurora police radio transmissions like they did before both agencies blocked public access — Denver in 2019 and Aurora three years earlier. Although each department has a written policy on radio access, neither has reached an agreement with any Denver metro news organizations.
“From where I’m sitting, it appears encryption negotiations have stalled,” said Kirsten Boyd, assistant news director at Denver7 and a Colorado Freedom of Information Coalition board member.
Matt Lunn, manager of strategic initiatives for the Denver Police Department, told CFOIC the major sticking point from his perspective is a provision in Denver’s proposed agreement known as the auditor’s clause. “And unfortunately, we don’t have the ability —the city attorney’s office doesn’t have the ability — to remove that from any of our contracts,” he said. “It’s a standard clause required by the auditor’s office and so that’s kind of where we’re at.”
The clause says that “any authorized agent of the City, including the City Auditor or his or her representative, has the right to access and the right to examine any directly pertinent books, documents, papers and records of the Licensee,” in this case a news organization asked to sign the agreement.
Aurora’s policy doesn’t have an auditor’s clause, but it and the Denver policy each have indemnification provisions that also are problematic for news outlets. Aurora’s policy requires a media organization to “indemnify, defend and hold harmless the Aurora Police Department, the City of Aurora, its elected and appointed officials, employees, agents and representatives from and against all claims, damages, liabilities, losses, and expenses, direct, indirect or consequential arising out of or resulting from this Agreement.”
“Since (the policy) was published in January 2021, the APD Public Affairs Unit has only received one media inquiry,” Reagan Peña, Aurora’s public safety media relations manager, wrote in an email to CFOIC. “They responded to it, provided the organization a copy of the agreement and radio specifications, and never heard back. No media organization has entered into the agreement.”
Denver metro news organizations and Denver officials worked on alternative language for the auditor’s clause, and they made some progress, according to some participants in the negotiations. But the inclusion of the indemnification clause was the main obstacle for news media.
“The Colorado Broadcasters Association worked tirelessly with bipartisan legislators to get the encrypted radio language added to HB 21-1250,” wrote Justin Sasso, CBA’s president and CEO, in an email to CFOIC. “We were excited to finally bring our media members and law enforcement to the table for a collaborative planning process, to ensure transparency with radio communications, as the law requires. Instead, we’ve been met with stonewalling, finger pointing and runaround tactics for over a year. It’s hard to imagine that this is what the General Assembly had in mind when they passed HB 21-1250 in bipartisan fashion.”
“It’s overwhelmingly clear that the public wants more transparency from law enforcement agencies,” added Sasso, a CFOIC board member. “We remain hopeful that law enforcement agencies will begin engaging the media, in the very near future, to create plans for unencrypted radio access or we may need to evaluate additional legislative measures to actually get law enforcement to comply with the statute.”
Lunn said DPD worked with Denver news organizations to resolve the encryption issue “proactively, even before this was legislation, because we wanted to make sure that media had access to information and also make sure we were being protective of criminal justice-related issues.”
Colorado news organizations relied on scanner traffic for decades to learn about police activities. At least 30 law enforcement agencies around the state have encrypted their dispatch communications, with a few like the Colorado Springs Police Department reaching agreements with local newsrooms to provide radio access. The Boulder Police Department is an example of an agency that still has a public dispatch feed, which you can listen to on Broadcastify. Pueblo police encrypted its transmissions but allowed local news outlets to purchase radios that let them listen.
The law enforcement agencies that encrypt all their radio communications say the move was necessary to protect officer safety and prevent the release of personal information of victims, witnesses and juveniles.
But journalists in Denver, Aurora and some other cities now must count on each department to keep them informed — in a timely manner — via social media and news releases. Some information can be gleaned from open fire department channels.
For a recent in-depth story documenting a week of gun violence, reporter Elise Schmelzer and photojournalist Jintak Han of The Denver Post had to rely on Denver Police Department tweets to learn of shootings. “That meant that sometimes we were an hour late to the scene, or more,” Schmelzer told CFOIC. “There’s usually at least a 45-minute delay between the shooting and the tweet, so makes it hard to get places before everything is roped off.”
The encryption of all Denver police channels also made it harder to cover the July 17 LoDo police shooting that injured six bystanders and prompted a grand jury investigation, noted Denver Post managing editor Matt Sebastian.
“We wouldn’t have been listening live, since it happened around 2 a.m., but that shooting is an excellent example of DPD withholding key information for a long time,” he wrote in an email to CFOIC. “They tweeted out a short briefing around 4 a.m. and then spent almost all day Sunday refusing to discuss the matter until they finally put out a press release late in the day.”
Had DPD radio traffic not been encrypted, Sebastian added, Schmelzer would have used Broadcastify archives that morning “to go back and listen to all of the police radio calls surrounding that shooting, which would have given us a much earlier idea of what actually happened … What were the officers saying to each other? What did they see or know about a gun on the man they shot? Were they aware they’d shot or injured six other people in the process?”
(Journalists can request recordings of police radio transmissions and logs under the Colorado Criminal Justice Records Act, but those records can be withheld or redacted under CCJRA’s “public interest” balancing test and there is no deadline in the law for agencies to respond to requests for most criminal justice records.)
“Incredibly frustrating,” she told CFOIC. “Seems there would have been intense public interest and safety concerns given they had to evacuate nearby homes.”
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