States' policies on internal police files vary

Bruce Rushton

James Preston thinks police internal-affairs files should be made public. And he’s far from a police critic.

“It helps restore public confidence and shows that we can police our own,” says Preston, who is president of the Fraternal Order of Police in Florida, where internal-affairs files are open to the public once investigations are concluded.

“Our public-records statute is, literally, a century old,” says Alexis Lambert, public-records attorney for the Florida attorney general’s office. “Open government and transparency is one of the founding principles of this country—James Madison was writing about it in the Federalist papers. We take these things seriously.”

Florida, where files must be kept for 50 years, is one of several states where police internal-affairs files are considered public records. Illinois joined the club in July, when the 4th District Appellate Court ruled that internal-affairs files are public documents under the state Freedom of Information Act, regardless of whether complaints are sustained by investigators.

The court's decision has its roots in a local case. Dr. Mark Gekas, a Springfield dentist, complained that Sangamon County Sheriff's deputy John Gillette unnecessarily drew his weapon during a 2006 traffic stop and used profanity.

Instead of suing the department for excessive force, Gekas, whose complaint against Gillette wasn’t substantiated by the department, sued under the state Freedom of Information Act, demanding Gillette’s entire internal-affairs file. He prevailed earlier this year.

Gillette resigned last month, after courts ruled that internal-affairs files concerning him and other law enforcement officers are public records. The ruling was a landmark in a state where internal-affairs files have traditionally been treated as personnel records, exempt from disclosure under the state Freedom of Information Act.

As a result of the ruling, The State Journal-Register obtained files on Gillette and other deputies. The newspaper is seeking more records from Illinois State Police and the Springfield Police Department.

Police not happy

The decision is not sitting well with police in Illinois.

“Our concerns are that unfounded and unsustained complaints get released,” said John Roche, an attorney with the Illinois Fraternal Order of Police Labor Council.

What about complaints that are upheld?

“I think there can potentially be personal information in those cases, still,” Roche said. “It really depends on the case.”

According to the Reporters Committee for Freedom of the Press in Washington, D.C., internal-affairs files are public in at least a half-dozen states. But there can be a big difference between what’s contained in public-record statutes and what happens in the real world.

In Massachusetts, for example, internal-affairs files are classified as public records, but the law also contains “a whole slew” of exemptions under which the files can be withheld, including provisions that allow withholding to protect witness names, victim names and medical information, said Alan Cote, supervisor of records for the commonwealth of Massachusetts.

“Everything can be redacted,” said Cote, who rules on whether public agencies in Massachusetts must disclose records. “The vast majority of it might be withheld because it’s a personnel record.”

The degree of openness in Massachusetts can depend on the nature of the case, Cote said.

“If it’s an egregious situation that’s very, very serious in nature and the outcome is serious in nature, then usually the push is to have it made public,” Cote said. “If it’s a small internal-affairs violation and if the finding is murky, or there’s no finding, it’s usually withheld.”

In Minnesota, internal-affairs files are public records if officers are disciplined, said Mark Anfinson, attorney for the Minnesota Newspaper Association. However, the Minnesota Supreme Court has ruled that the names of accusers must be disclosed, he said, so the public can find out if an investigation is underway or has been completed.

“That’s been a valuable tool here,” Anfinson said. “It’s allowed people interested in police discipline to find out the status of these things.”

Seven years after the Missouri Supreme Court ruled that internal-affairs files are public records when officers are accused of criminal conduct, battles continue over what can be kept secret and what must be disclosed.

In St. Louis, police in August settled a lawsuit in which officers were accused of falsely arresting people who were jailed to prevent them from protesting at the World Agricultural Forum in 2003. Among other things, the would-be protestors said officers urinated on their belongings after arresting them, slashed bicycle tires and otherwise damaged their property.

Police refused to release internal affairs files to the media, saying such actions didn’t qualify as crimes. Police ultimately paid $54,000 to the plaintiffs and $210,000 to their attorneys and also issued a letter of apology. The internal-affairs files have never been released, although Tony Rothert, an attorney for the American Civil Liberties Union of Eastern Missouri that handled the case for protestors, said he was allowed to see them under a protective order banning public dissemination.

St. Louis police resist file disclosure

The ACLU in St. Louis has a pending lawsuit against St. Louis police, who have resisted turning over internal-affairs files on officers who were accused of taking tickets from scalpers during the 2006 World Series, giving the tickets to other officers and friends and keeping money taken from scalpers. Police have stipulated that the allegations were criminal in nature, Rothert said. The judge in the case is considering whether parts of the internal-affairs files can be redacted, the lawyer said.

Since a 2002 court ruling that opened files, some departments in the Show-Me State have routinely released internal-affairs records, while others have tried finding exceptions to open-records statutes to prevent disclosure, Rothert said. Every year, he said, a bill is introduced in the Missouri legislature to make internal-affairs files off-limits, and every year legislators have declined to do so.

In Illinois, Roche said the Fraternal Order of Police Labor Council hasn’t decided whether to push for a bill to make internal-affairs records confidential.

“We’re reviewing the matter,” Roche said.

Tracy Siska, executive director of the Chicago Justice Project, a police watchdog group, said his organization plans to use the state Freedom of Information Act to get internal-affairs files from the Chicago Police Department, which has traditionally fought to keep the files confidential. He said there is disagreement on whether the 4th District decision extends to the entire state, but he says he doubts the General Assembly would pass a law to make internal-affairs files secret.

“It’s important that every step, every action government takes, is reviewed by citizens to make sure it’s operating properly, that there’s not a ‘trust-us’ mentality,” Siska said.

Bruce Rushton can be reached at (217) 788-1542