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“German Bosque’s personnel file looks more like a rap sheet than a résumé.”
That’s the first line of a nine-day series in the Sarasota Herald-Tribune that in 2011 used law enforcement disciplinary records to document how a flawed disciplinary process allowed violent and abusive cops to keep their badges despite numerous sustained complaints.
In Florida, not only are police misconduct records publicly available they are available electronically. Reporters Anthony Cormier and Matthew Doig used their computers to analyze 22,000 cases in the state’s misconduct database, then obtained personnel files on 250 current and former cops.
Their lead subject, Bosque, an Opa-Locka police sergeant, was the subject of 40 internal affairs cases. Sixteen of them were for battery or excessive force.
“Still, Bosque has kept his badge,” the story said. “In Florida, the process of investigating and disciplining police officers and prison guards is flawed at every level, allowing troubled lawmen to return to work after repeated acts of misconduct, a Herald-Tribune investigation has found.”
The series, “Unfit for Duty,” went on to examine police agencies’ lax handling of the cases as well as the role law enforcement unions play in keeping bad cops on the job. Oversight boards also fail to effectively deal with problems, and resist pulling police certifications, they showed.
That kind of in-depth public service reporting on police agencies isn’t possible in Hawaii, where misconduct records are exempt from public disclosure under a state law pushed through by Hawaii’s own politically powerful police union. It’s an exemption afforded only to the police; no other public employee has that protection.
Annual summaries required to be filed with the Legislature hint at serious wrongdoing, but unlike in Florida and most other states, the public in Hawaii is not allowed to check independently on misbehavior. Police commissions here also have little power over the police departments, other than to fire the chief. Their own investigations of citizen complaints are kept secret, too.
Civil Beat reviewed laws governing personnel files and disciplinary records for all 50 states, including contacting First Amendment attorneys in a number of states for clarification.
Most states are more open than Hawaii, requiring more information to be released at earlier stages in the process.
Only a handful of states prohibit all public access to disciplinary records. Most states — at least 39 — allow either unrestricted access to disciplinary records or make the files available at some point in the disciplinary process, usually after action has been sustained against an officer.
Hawaii is one of those states that, on the books at least, allows access after an officer has been discharged. But in practice, in Hawaii those records are routinely unavailable because they have already been destroyed by the time the public finds out an officer has been terminated. Files on suspensions or investigations, like the Sarasota paper used to find abusive cops stillon the job, are never made public here.
A review of national disclosure laws and interviews with attorneys show that in many states police disciplinary records are considered to be of significant public interest and outweigh any right to privacy by the officers. That was certainly what Hawaii courts ruled as well, but the Legislature instead sided with the police union which argued disclosure would be intrusive and humiliating.
“There’s a tremendous public interest in having these types of records available to the public,” says Mark Caramanica, the Freedom of Information director for the Reporters Committee for Freedom of the Press, a national group that tracks sunshine laws and advocates for open government and transparency.
“We’re talking about people who have the right to use force against individuals,” Caramanica said. “The public should have a right to know whether they are acting in accordance with the law. Throwing a piece of paper into a personnel file doesn’t turn it into a public record.”
John McKay, a longtime First Amendment lawyer in Alaska, has successfully freed up police personnel files including in cases where officers have been charged criminally. In 2010, McKay convinced a judge to release the personnel file of a former Fairbanks city attorney, Joe Miller, who was running for the U.S. Senate. The court said the public needed to know the background of a man running for one of the highest offices in the state.
In that case, as well as in others involving law enforcement personnel, McKay said the courts have consistently balanced the public’s right to know against Alaska’s strong privacy law and came down on the side of the public.
“Police officers are treated as public figures because they hold life and death powers,” he said. “They can do things a janitor or a clerk or a school teacher can’t do.”
Herschel Fink, a Michigan attorney, says the courts there have ruled that public interest in disclosure of police disciplinary records outweighs non-disclosure.
“Not the black-and-white issue I would like it to be,” Fink wrote in an email to Civil Beat, “but I had no trouble establishing with the court in the case of a policeman who pulled over women and sexually harassed them that the public interest was clearly stacked in favor of disclosure.”
Like the Sarasota newspaper, news media, too, routinely use personnel files and disciplinary records to demonstrate serious problems within a local police organization.
In Milwaukee, the Journal Sentinel used disciplinary records of 1,900 Milwaukee police officers and supervisors to build its own database of misconduct, focusing on officers who had violated the law or local ordinances, according to a story about the project on the newspaper’s website.
The series, “Both Sides of the Law,” reported on 93 officers who had committed various crimes between 1979 and 2010, but were still on the job.
“Their offenses range from sexual assault and domestic violence to drunken driving and shoplifting, according to internal affairs records,” reporter Gina Barton wrote. “All still work for the Police Department, where they have the authority to make arrests, testify in court and patrol neighborhoods.”
The newspaper obtained the files under the state public records law. But it had to pay $7,500 and wait 19 months for the Milwaukee Police Department to provide them.
The Milwaukee department has about the same number of officers as the Honolulu Police Department — about 2,000. Civil Beat analyzed 13 years of misconduct summaries filed by HPD with the Legislature. We found that nearly 25 percent of the 512 incidents involved criminal conduct, including 33 convictions. Only one officer lost his job due to a conviction.
But, since Hawaii’s public records law specifically exempts police from having to reveal details of misconduct, it’s impossible to tell if the reports are accurate.
More importantly, public record reviews in other states have uncovered serious lack of oversight by police administrations and boards.
But lack of access to those same kinds of misconduct records makes it impossible to tell whether Hawaii has the same kind of problems as Milwaukee, Sarasota and other departments.