By Jeffrey A. Roberts
CFOIC Executive Director
The Colorado Supreme Court on Monday removed a frustrating barrier for some requesters of police internal affairs records, deciding that criminal justice agencies may not withhold completed IA files from the public simply because the requester has not referenced a “specific, identifiable incident” of alleged misconduct by an officer.
The 5-2 decision upheld a district court ruling against the El Paso County Sheriff’s Office for refusing to provide a criminal defendant, Regina Sprinkle, with internal investigation files about two deputies who were witnesses in her case. The sheriff’s office had interpreted House Bill 19-1119, enacted in 2019, as allowing it to deny requests for IA files for being too “vague.”
It’s hardly the only Colorado law enforcement agency to have done so. As the Colorado Freedom of Information Coalition pointed out in a 2020 article, several other police and sheriff’s offices have denied requests for IA records from news organizations, noting that the statute applies to investigations examining the in-uniform or on-duty conduct of a peace officer “related to a specific, identifiable incident of alleged misconduct involving a member of the public.” The Larimer County Sheriff’s Office and the Fort Collins and Loveland police departments also have told journalists their requests were too “vague” or did not “meet the specificity” required by the law.
But in the majority opinion issued Monday, Justice William Hood wrote that the words “specific, identifiable incident” refer to the types of incidents subject to IA investigations, “not who must identify those incidents as part of a request to inspect investigation files. Therefore, the person requesting access to internal investigation files need not reference a ‘specific, identifiable incident’ of alleged misconduct in the request.”
“The term does not relate to the records request but, rather, to the investigation,” the ruling says. “Thus, when read as a whole, we understand ‘identifiable’ as describing a specific incident of alleged misconduct that is identifiable by the investigating officer so that the investigation could occur.”
The 2019 law “doesn’t require people seeking to inspect the files know of the specific, identifiable instances of misconduct or that they include such designation in their request.”
Earlier this month, the Colorado General Assembly addressed the narrow interpretation of HB 19-1119 by some law enforcement agencies in House Bill 21-1250, which is awaiting Gov. Jared Polis’ signature. In an amendment to the bill, which passed on the last day of the 2021 legislative session, lawmakers removed the phase “specific, identifiable” before the word “incident.” The point of the amendment, said Sen. Julie Gonzales, D-Denver, is to “help the public access … files related to potential misconduct.”
Before HB 19-1119 went into effect in April 2019, establishing a statewide standard for the disclosure of IA records, 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 under the Colorado Criminal Justice Records Act that disclosure would be “contrary to the public interest.” (The Denver Department of Public Safety was an exception, regularly providing the disciplinary records of police officers and sheriff’s deputies in response to requests.)
During hearings on the 2019 bill, the Colorado Supreme Court decision says, lawmakers made it “abundantly clear” they sought to eliminate the discretion of records custodians “to deny access to certain internal affairs records and to make it easier for the public to obtain such records without involving the courts.”
“Nothing in the legislative history suggests that a requester should have to identify a specific incident or that the Amendment makes such broad requests impermissible.”
Justice Carlos Samour and Chief Justice Brian Boatright issued a dissenting opinion. The legislature, Samour concluded, “did not intend to sanction a criminal-justice-records version of ‘Go Fish.’ Because that kind of guessing game is the inevitable result of the majority’s decision … I respectfully dissent.”
The plain meaning of the statute, Samour wrote, leads to the conclusion that a records request must itself be related to a specific, identifiable incident. “The majority’s more expansive interpretation will almost certainly promote unsupported fishing expeditions and inevitably result in a contentious and confusing process unsanctioned by a commonsense reading” of the law.
“And while I fully support increased transparency of public access to criminal justice records, I cannot get behind the majority’s far-reaching result.”
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