ASNE joins amicus brief in racial profiling case

Should personnel records containing accusations of racial profiling remain hidden to protect the privacy rights of individual police officers? That's the question raised in a case pitting the NAACP against the Maryland Department of State Police in the state's highest court. ASNE joined several other media organizations on the amicus, which was filed earlier this week.

By Kevin Goldberg

RESTON, Va. — The Reporters Committee for Freedom of the Press filed an amicus brief this week in the highest court in the state of Maryland, arguing for a right of access to personnel records of the Maryland Department of State Police. ASNE was one of thirteen other media organizations that joined the brief.

The brief supports a request filed by the National Association for the Advancement of Colored People under the Maryland Public Information Act, for documents related to the investigation of racial profiling allegations made against the state police. The police denied the request, claiming that records containing accusations of racial profiling by individual officers constitute “personnel records” which are exempt from disclosure.

After the NAACP appealed, a trial court in Maryland ordered the police to disclose the records, with redactions where disclosure would violate an officer's legitimate expectation of privacy. The Maryland Court of Special Appeals upheld the lower court's order to disclose the records. The state police appealed again, this time to Maryland Court of Appeals, the state's court of last resort.

Our brief draws heavily on information collected from reporters about the vital role police department investigatory files can play in uncovering official misconduct. It doesn't assert a general right of access to all police personnel files, just the information in those files that must be scrutinized to ensure that police interaction with citizens is within the law. The brief raises three main points:

  1. The Maryland State Police claim the files must be kept secret to protect police officers' personal privacy, but those privacy rights conflict with the public's right to scrutinize the activity of public officials. The brief argues that it should be “clear that given the unique position police officers hold in the community, they invite greater criticism and public oversight than the average civil servant".
  2. Though only a few states mandate that police personnel records are categorically public in all cases, many more allow access subject only to limited exceptions. The states approach the issue in different ways, but none require the withholding of the kind of personnel records that the Maryland State Police wannest to keep hidden.
  3. Finally, the brief describes the real-life implications of the case by citing the following stories in which personnel files have been used by reporters to serve the public interest, including:
    • A story in the Fort Lauderdale Sun-Sentinel which used internal affairs records to report on a police officer who was consorting with known criminals and tipping them off about police activities.
    • A 2001 piece in the Orlando Sentinel which noted that a 26- year police veteran hadn't been punished despite a pattern of unethical conduct. He eventually resigned as a result of the story.
    • A Hartford Courant story reporting on an officer who was patronizing strip clubs and massage parlors that were under police investigation.
    • A Chicago Tribune investigation into allegations that prison guards had beaten inmates and falsified reports to cover it up.
    • Several articles questioning the lack of standards or proper background checks in the police hiring process.
    • A Gainesville Sun story showing that a police officer at the Univ. of Florida had been improperly dismissed after an on-camera shooting.

This case carries significant implications for reporters in Maryland and across the nation. Oral arguments are scheduled for November 5.

Kevin Goldberg is a lawyer for Fletcher, Heald & Hildreth and is the legal counsel to ASNE. You can find him blogging on CommLawBlog, published by his firm.