By Jeffrey A. Roberts
CFOIC Executive Director
Aurora has agreed to revise its policies on the disclosure of police internal affairs records as part of a lawsuit settlement, but a new court case alleges the city wrongly withheld body-worn camera footage related to a traffic accident involving Denver Police Chief Robert White.
The Denver Police Protective Association, which represents Denver officers, sued Aurora and its municipal records clerk last month in Arapahoe County District Court. The union claims the city’s “blanket policy” of providing body camera video only to people depicted in the footage “contravenes state law and is an abuse of discretion.”
In rejecting the union’s request for the footage, the lawsuit says, the city failed to conduct a balancing test of interests as required by the Colorado Criminal Justice Records Act (CCJRA).
That’s the same claim Kevin Ravenscroft made in a separate lawsuit against Aurora for denying his lawyers’ request for records related to a June 2016 incident in which police officers were mistakenly dispatched to his apartment. An officer, he alleged, threw him to the ground, handcuffed him and entered his home without a warrant or his consent.
In January, an Arapahoe County District Court judge ordered the Aurora Police Department to weigh “pertinent factors” related to the records request, rather than rely solely on the city charter and police department policies, both of which make internal affairs files confidential.
In a March 26 settlement obtained by the Colorado Freedom of Information Coalition under the Colorado Open Records Act (CORA), Aurora denies that it violated the CCJRA in the Ravenscroft case. But the city agreed to revise its policies by April 30 “to allow for public inspection of all internal affairs files” consistent with two Colorado Supreme Court decisions.
In Harris v. Denver Post, the Court in 2005 said records custodians, in determining whether disclosure of criminal justice records is “contrary to the public interest,” must take into account factors such as the privacy of individuals, the public interest in allowing inspection of records and the agency’s interest in pursuing ongoing investigations without compromising them.
In a subsequent ruling, the Court wrote that the “power to redact” gives records custodians “an effective tool to provide the public with as much information as possible, while still protecting privacy interests when deemed necessary.”
“As stated in the agreement, the Aurora Police Department will conduct the Harris factor analysis, balancing the privacy interests against the need for public disclosure,” Senior Assistant City Attorney Nancy Rodgers said in a statement emailed to CFOIC. Some of the records requested by Ravenscroft’s attorneys have since been released to them.
The new lawsuit, filed in Arapahoe County District Court in mid-March, stems from a September 2017 accident involving Chief White. According to The Denver Post, White chased a car that hit his SUV until the other car wrecked near the Denver/Aurora line. The chief apologized for making comments about officers in his department while talking with Aurora police about the crash.
The Denver Police Protective Association asked for body camera footage from Aurora officers at the scene but was told, “Disclosure is not permitted to individuals who are not a subject matter of the video,” according to its lawsuit. The union claims the city “did not engage in a balancing test prior to denying the inspection request … or engaged in a purely perfunctory balancing test.”
Aurora’s body camera disclosure guidelines, provided to CFOIC by the city, state that “disclosure will generally not be permitted in response to a CORA or CCJRA request from a person that is NOT a subject of the video or the victim in a case.”
The city hasn’t yet filed a response to the union’s lawsuit in court, and public relations manager Lori MacKenzie said Aurora does not comment on pending litigation. But in an email, she wrote that Aurora’s body camera disclosure policy “is designed to protect the integrity of a criminal case at all stages, along with the privacy interests of individuals who appear in the video. APD takes great strides to properly balance the public’s interest in disclosure when determining whether disclosure would be appropriate.”
Denver Mayor Michael Hancock announced earlier this month that White will not face discipline for his actions related to the car chase and a separate case involving a 2016 open records request. The chief announced his retirement earlier this week.
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