Maryland Court Says Police Misconduct Files Can Be Withheld From The Public

A bad ruling has been handed down that will make it much more difficult for the Maryland citizens to find out the extent of misconduct performed by public employees. The court there is nodding to an expectation of privacy that really shouldn't exist in the public sphere and, in doing so, has provided that much more obscuring darkness for badly-behaving cops.

The Maryland appeals court has ruled that police departments' internal investigation documents are "personnel files" and thus exempt from public records requests. The decision came in response to a lawsuit filed by the ACLU on behalf of Taleta Dashiell, who was seeking a copy of documents related to her own sustained complaint against Sgt. John Maiello of the Maryland State Police.

Contributing to this bad decision is a handful of "extra rights" that have been granted to the state's law enforcement officers.

After the Court of Special Appeals determined that the Circuit Court erred by not requiring the State Police to create an index of the withheld documents and by not conducting an in camera review of the documents, the State filed a writ of certiorari asking us to consider the following question:

Did the Department of State Police properly invoke the Maryland Public Information Act's (MPIA) exemptions for personnel records and records that are confidential under other law - here the Law Enforcement Officers' Bill of Rights - to deny a request for the internal affairs records of an investigation into the conduct of a specifically identified state trooper?

Maryland, unfortunately, is somewhat of a pioneer in giving certain public servants more rights than other public servants, and more rights than the public itself, the latter of which has the dubious privilege of paying the salaries of these "more equal" police officers.

Maryland was the first state to pass a LEOBR, in 1972, and by now many states have followed, invariably after lobbying from police unions and associations. Often the bills are sponsored by Republicans, who seem to forget their normal skepticism of public employees as an interest group when uniformed services are involved.

Among other things, the LEOBR grants police officers the "right" to have up to 10 days to respond to misconduct allegations and to be able to appoint a lawyer of their choosing to represent them in what is normally just an employer-employee interaction anywhere else in the working world.

Dashiell was attempting to obtain documents related to her complaint against Officer Maiello, who was captured on her voicemail referring to her (twice) as a "nigger." From that point forward, the Maryland State Police did everything it could to keep her from seeing anything related to Maiello or her complaint.

Supposedly, the state provides an exception to the personnel records exception in the case of the "person of interest" -- which should have covered Dashiell's request. Despite existence of such records being confirmed by a letter from the MSP to Dashiell, the department refused to turn over the requested files. The MSP was creative in its stonewalling of Dashiell's request, treating the retirement of the officer charged with fulfilling requests as the end of the line for this inquiry.

The MSP returned the March 2, 2010 MPIA request to the ACLU stamped "addressee unknown." Apparently, unbeknownst to Ms. Dashiell and the ACLU at the time the MPIA request was sent, Lieutenant Colonel Fischer had retired from the MSP.

The MSP returned the MPIA request, failing to even identify the new custodian, rather than deliver it to the current custodian of records.

Dashiell sent a new request to the new custodian of records, which was denied in its entirety -- including her request for, if nothing else, an index of the records held.

The lower court granted the MSP summary judgment, claiming the files requested were exempt from disclosure, even considering Dashiell's "person of interest" status. She appealed, but the appeals court has now arrived at the same conclusion.

The court's opinion says that the law is law, no matter how stupid under these specific circumstances. The sustained complaint is treated no differently than an unsustained complaint and no matter how much information has been made public already, the officer's privacy trumps the public's interest. The court strains credulity by suggesting the release of such information would negatively affect future misconduct investigations.

The plain language of the Public Information Act, also, does not differentiate between "sustained" and "unsustained" complaints. A determination that a sustained finding requires disclosure of personnel information, though, would affect all public employees, not only the police force. Further, mandatory disclosure of personnel information related to sustained findings could chill the disciplinary process, rendering those in control less willing to sustain a finding of misconduct.

It is insane that the court would actually believe that the public has the power to actually "chill" any government action. The state's laws -- combined with the Bill of Rights extended to police officers only -- create their own chilling effect. Police officers know that it's highly unlikely any record of their misconduct will ever reach the eyes of the public, which creates an incentive for future abuse. This has a chilling effect on citizens, who know that it's highly unlikely any officer will receive significant discipline for wrongdoing, as the entire process is allowed -- by law -- to be conducted in total darkness.

The court also points out that it agrees with lower courts' findings: despite Dashiell being the one to file the complaint, she is not the "person of interest." Officer Maiello is. So if anyone is ever going to make records of police misconduct complaints public, it can only be the officer against whom the complaint was filed. Which means this will NEVER HAPPEN.

Two judges offered their dissenting opinion, pointing out that the majority expressly dodged a question crucial to the determination of whether these files should be eligible for "personnel information" protection. There's a difference between "unsustained" and "sustained," and the court has chosen bypass this delineation and defer to the law's wording instead.

This result is far different from the circumstance of permitting unsubstantiated allegations of a complaint to be made public. In sustaining a complaint against one of its officers, a law enforcement agency acknowledges the truth of the very facts that "directly pertain to employment and [the officer]'s ability to perform [his or her] job."

In contrast to such facts, the discipline that the law enforcement agency decides to administer to the officer does not directly pertain to employment or the officer's ability to perform his or her job. Plainly put, the officer did what the officer did, regardless of how the law enforcement agency decided to respond. The administration of the discipline is an action of-and thus reflects the judgment of-the law enforcement agency, not the officer. Thus, a record of discipline based on a sustained complaint against a law enforcement officer is not a personnel record; instead, it is among the very types of document that the Public Information Act is designed to make available to the public: a document that reflects how a public agency responds to an employee's proven misconduct.

This is how it should be. But it isn't. The state law allows misconduct to go unexamined and grants public employees a privacy expectation in their publicly-funded employment that simply shouldn't exist. Even records related to unsustained complaints are of value in terms of accountability, but at the very least, records of sustained complaints should be excluded from the law's personnel records exemption.

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