Good Cop or Bad Cop: The Public’s Right to Know

by Pullman & Comley - Labor, Employment and Employee Benefits Law
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As you may have learned through media reports or your favorite television cop show,  allegations of misdeeds by police officers usually proceed through a police department’s “Internal Affairs” [“IA”] investigation process.  In today’s world, it is not surprising that journalists and members of the public may want to have access to these IA records and reports, and the Freedom of Information Commission [“FOIC”] recently reminded us that the public does, in fact, have a right to know about the outcome of these IA investigations.

In Kaloidis v. Chief, Police Department, City of Waterbury, Docket #FIC 2013-047 (December 18, 2013), a criminal defense attorney requested under the Freedom of Information Act [“FOIA”] copies of all internal affairs reports and civil complaints concerning three specific police officers.  The Police Department refused to produce such records.  Noting that the attorney making the request was planning on using the information in defense of a client in a pending criminal matter; the Department asserted that the courts (not the FOIC) should decide whether the records were subject to disclosure.

The FOIC found that the Police Department violated the FOIA by failing to provide a copy of the requested records, and as a remedy ordered their disclosure free of charge.  In rejecting the Police Department’s arguments, the FOIC noted that 1) a party’s right to access to records under the FOIA is separate and in addition to any rights to records through discovery in court actions, and 2) a party’s motivation for a records request is irrelevant to as to his/her right to access to public records under the FOIA.  Furthermore, the FOIC rejected the Police Department’s (and police union’s) claims that the records were exempt from disclosure under the FOIA’s exception for “personnel files … that would constitute an invasion of personal privacy.”  The FOIC reminded everyone that records relating to public employees are presumptively legitimate matters of public concern, noting that 1) a public employee’s expectation of privacy is diminished, as he/she is “a servant of and accountable to the public,” and 2) “the public has a right to know not only who their employees are, but also when their public employees are and are not performing their duties.”  The FOIC relied upon numerous previous rulings in noting that the release of reports of internal investigations of police misconduct generally does not constitute an invasion of privacy, except in the very rare case where the misconduct both does not relate to official business and is unsubstantiated.

What does this all mean and who does this affect?  In most cases, a police department is playing with fire in refusing to produce IA reports and records.  It is noteworthy that the FOIC does have the power to issue fines to those officials found to have violated the FOIA.   Indeed, in light of the now even more well-established case law on the disclosure of IA reports, one can surmise that the FOIC’s patience with officials who refuse to disclose typical IA records will be quite limited.  In addition, this case further drives home to all public employees and employers that personnel and similar records, including complaints concerning alleged employee misconduct (regardless of the outcome) are generally fair game for the public.  Finally, all employers should realize that the FOIA can be a tool for conducting background checks of a job applicant who may have previously worked as a public employee, as red flags concerning such an applicant may be in plain sight.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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