Exposing Police Misconduct Through Open Record Laws

By Justin Silverman

Diane Bond, a public housing tenant in Chicago, accused five of the city’s police officers of sexual, physical and psychological abuse in 2004. Her lawyer, University of Chicago law professor Craig Futterman, requested the disciplinary files of the entire force, intending to show a pattern of police misconduct. The files were turned over to Futterman though they were never publicly released because Bond settled with the city in 2007 and the suit was consequently dismissed.

Realizing the importance of those files to the public, journalist-activist Jamie Kalvin petitioned the court to unseal those records. News organizations such as the Chicago Reader, the Chicago Tribune and The New York Times all rallied in support. The court agreed with Kalven’s public interest argument and said it would unseal the records but would first allow the city to file an appeal. That appeal has since been considered and on Tuesday the Seventh Circuit ruled: Keep those files sealed, confidential and undisclosed to the public.

To advocates of open government and those looking to expose police misconduct, the decision is a disappointing one, if not unsurprising. Records of ongoing investigations, such as ones involving police, are usually closed to the public. This is the case in Illinois as well as in nearly all other states. Most states have laws explicitly making records of ongoing investigations closed to the public or instituting a balancing test that favors non-disclosure. Many states, including Illinois, make no distinction between ongoing and closed investigations. That means that even though all investigation and legal proceedings are completed, the records can still be kept secret. Within Illinois and throughout the country, the burden is on the journalist to compel disclosure when, I believe, it should be on the state to convince a court otherwise.

Journalists scored a win this week, however, in New Jersey. An appeals court there ruled that police use-of-force reports are public and cannot be withheld as investigatory records. These reports are completed any time a police officer uses force against a citizen. The court found that because they are required for documentary purposes, not for particular investigations, they do not fall under any public record exemption. Whether or not they would be used in an investigation is speculative and police therefore cannot use that as a reason to keep the public uninformed.

According to The Reporters Committee for Freedom of the Press, there is a concern among city officials in West Milford, where the suit arose, that officers will now withhold information in their reports so it doesn’t become public. This, I argue, would be an affront to the New Jersey attorney general’s requirement that those reports are completed. It would be an intentional rebuke of the spirit of the law and any officer that did this should be disciplined.

Though the New Jersey ruling doesn’t address those records that are part of an investigation, it does provide a small tear in that cloak of secrecy. I think other states should consider amending their statutes to allow the same.

Here are links to the open record laws of each state. Scroll down to “Record Categories — Open or Closed” and then to “Police Records.” There you will find the state’s law on investigatory documents.