Police personnel records routinely kept secret, erased. How that hurts accountability

Miranda Spivack examined the contentious issue of expunging records from public documents during her APF fellowship. The McClatchy Newspapers printed all four of her articles, which are shown here.

‘Clean slate’ laws in America

How effective are new laws that erase criminal records? Take a look at the racial justice movement taking hold across California and the U.S. that aims to allow former felons to find a better life.

---

After four decades of hiding records of police misconduct, California has become one of the most transparent states. Prompted by a 2018 bill authored by State Sen. Nancy Skinner, a Berkeley Democrat, and two follow-up bills signed into law this year, the change means that it is much more difficult in California for bad cops to hide or get hired by another department.

But across the nation, similar efforts to make police misconduct and complaint records available to the public — or even to police chiefs seeking to provide counseling or weed out bad officers — are moving slowly. In many states, not only can these records be kept secret, but they also can be destroyed or locked away indefinitely.

Public pressure has increased to make the nation’s 18,000 police agencies more accountable to the public. But the secrecy of police personnel records, and the wide license that police agencies have to hide or get rid of the records, stand in the way.

Often by contract and in some states by law, officers can prevent the distribution of information from their personnel files, including findings by internal investigators that they had committed some wrongdoing on the job. Or they can demand that the information be erased.

That means that details from police personnel records, and histories of complaints, wrongdoing and performance evaluations that could function as an early warning system about officers both for supervisors and for the public, remain difficult to obtain.

“Secrecy of police discipline has been a huge problem,” said Sam Walker, an emeritus professor at the University of Nebraska who has studied policing for decades. “Academics ignored it, politicians were terrified, and police unions figured out you could play the crime card — any limits that would allow criminals to go free, you will be blamed.”

That includes internal probes of police untruthfulness, what he characterized as “the really big one.”

An AP analysis found that most states keep discipline records secret — if they continue to exist.

And in an assessment of Baltimore policing in the wake of Freddie Gray’s death following a rough ride in a police van after his arrest, Walker wrote: “Meaningful police accountability requires as full a picture of an officer’s performance record, and any procedure for expunging records is an impediment to accountability.”

So are several other policies, some enshrined in contracts and some in state law. At least 22 states have some form of a police “bill of rights,” which frequently allow officers extra time, often several days, before they must respond to allegations of wrongdoing.

Contracts and laws also prohibit civilian oversight of police actions; allow departments to ignore civilian complaints if they are anonymous; shield officers from any liability in civil suits; and require arbitration in discipline cases, which frequently has resulted in officers being allowed to return to their jobs. Several states delay officer interrogations even after the officer used force — a privilege no civilian is afforded.

Although the data are useful tools when meting out discipline or proposing a promotion, they also could help police agencies and the officers themselves improve their practices, even when an internal review finds no wrongdoing. What may be considered an unfounded violation of policy or practice to an internal police disciplinary panel may look different to those standing outside the department and pressing for reforms.

A 2019 series by a consortium of 40 California news organizations, including the McClatchy newspapers, gained access to police records and found 630 officers convicted of a crime in the last decade — an average of more than one a week. Driving under the influence and other serious driving offenses topped the list, followed by domestic violence.

Nearly one of five officers was still on the job or kept their jobs for more than a year after sentencing. There were about 80,000 law enforcement officers in California in 2019. The state’s attorney general at the time, Xavier Becerra, tried to prevent the disclosure of the data but the state’s appeals court ruled against him.

HOW ONE OFFICER TRIED TO BLOCK ACCESS TO RECORDS

The case of Rita Michelle Trotter, who spent 15 years as a police officer in Rockville, Md., a 60-member city department in the suburbs of Washington, D.C., is typical of the challenges the public, and at times prosecutors and police chiefs face when seeking information about an officer

In June 2019, Trotter received a jarring letter from the local prosecutor. The letter said that her role in any case in which she might be called as a witness could be in question. That’s because the Rockville department “may” have “evidence of prior conduct to show the character of the witness for untruthfulness,” the letter said. This information could be sought by defense lawyers in future cases, and the prosecutors could be obligated to disclose it to the defense, said the letter, quoted in a state appellate court ruling.

The reason? The Montgomery County Police Department, a separate agency from the Rockville department, had been investigating Trotter in 2006 around the same time that she left and found a job a few miles away at the Rockville Police Department.

In 2006, after joining the Rockville department, Trotter was notified by the Montgomery County Police Department “that charges had been sustained against her for Neglect of Duty / Unsatisfactory Performance and Untruthful Statements,” according to the court ruling.

After receiving the prosecutor’s letter about possible credibility issues, Trotter sued Rockville to prevent the city from using that information — although it already had been handed off to the local prosecutor.

Trotter’s lawsuit allowed her to try to make use of a little-known weapon that many police officers around the U.S. possess. Trotter’s lawyer argued that because the records no longer existed in the county’s department files — something the county police department had confirmed to Trotter — the information should not be available elsewhere.

Ironically, because of Trotter’s lawsuit and related filings and court rulings — all public documents — descriptions of the information she had wanted kept secret are now matters of public record.

The Maryland middle appellate court recently ruled that the lists of officers whom prosecutors had a concern about could be made public under Maryland’s open records laws. But some prosecutors, including Montgomery County’s, who sent Trotter the letter about information that might need to be disclosed to defense lawyers, did not release the letters immediately.

In November, only after receiving public records requests from several news organizations, did John McCarthy, the prosecutor, release the names of 43 officers and former officers from six of the county’s nine police departments. Often, when a letter goes out, “the officers resign” he said. So far his public list shows 21 on duty and 22 who have resigned.

Meanwhile, Trotter, who a spokeswoman said left the Rockville police department in June, so far has not succeeded in persuading a court to block access to her past history. She has appealed to Maryland’s highest court.

CONTRACTS ALLOW RECORD ERASURE

More than 600 police contracts, many in the country’s most populous communities, offer extensive opportunities for the removal and eventual erasure of discipline records and complaints from personnel files. They are sometimes removed quickly, and other times after a few years, according to a database of law enforcement contracts compiled by Campaign Zero, a nonprofit that says its goal is to end “police violence.” Stephen Rushin, a professor at Loyola University School of Law in Chicago also examined contracts and compiled similar data.

The records may actually continue to exist in some form in the department or state archives even if they are removed from the personnel file.

But depending on how old they are, they may not be used or even disclosed, even when a defense lawyer needs them to try to challenge the credibility of a police officer on the stand or a prosecutor wants to be sure to disclose all relevant and legally required information to the defense, as spelled out by a key 1963 U.S. Supreme Court ruling, Brady v. Maryland.

Rushin looked at 178 contracts from around the country, many from large departments, and concluded that many include barriers to making police agencies more accountable to the public.

“A substantial number of these agreements limit officer interrogations after alleged misconduct, mandate the destruction of disciplinary records, ban civilian oversight, prevent anonymous civilian complaints, indemnify officers in the event of civil suits, and limit the length of internal investigations,” he wrote.

California, Connecticut, Maryland, New York and Oregon are among a small number of states that have taken steps in recent years to make police discipline records more available to the public. The issue is being debated in numerous state legislatures.

In California, the laws enacted in 2018 and 2021 to open up the records to the public encountered substantial resistance from police.

“California has a long and good record for a great deal of transparency,” said state Sen. Skinner, the chief architect of the effort to open up police discipline records. “The public has been able to request information about almost any type of public employee - except law enforcement.”

Her bills take several steps towards opening up police personnel records, especially those examining the use of force. But they still allow agencies to withhold information, depending on the circumstances. Another bill from state Sen. Steven Bradford, a Democrat, approved this year, allows the state’s law enforcement accrediting body to decertify officers for serious misconduct.

Just before the first transparency law took effect on Jan. 1, 2019, several police agencies in the state got rid of old records. Cities such as Downey, Inglewood, Fremont and Morgan Hill were among those who got rid of historic records before the law took effect. The Yuba County sheriff’s department got rid of records two weeks after the law’s effective date. Others stalled the release of records and insisted on charging high fees for the information.

One key element of Skinner’s legislation that can help agencies and the public identify patterns and problems: the police departments must hold on to the records for 15 years in the case of findings of wrongdoing, and five years for findings of no wrongdoing, she said. Departments also must have access to personnel files from law enforcement agencies where the applicant previously worked, making it more difficult for officers with poor records to easily move from one department to another, Skinner said.

But many police contracts across the country are more like that of the police sergeants’ contract in Chandler, Arizona. It says that letters of admonishment that are more than three years old can be erased from the personnel file, assuming no subsequent similar problems. Counseling statements can be removed after one year if a sergeant requests them.

Similarly, Louisiana law allows officers who are the subject of anonymous complaints about domestic violence to have the matter erased from the officer’s personnel record if after a year the complaint is not substantiated.

Sheryl Sculley, the former city manager of San Antonio, Texas, who had lengthy negotiations with the police union over pay, benefits, and discipline policies, said that there were times when records of past problems with an officer would not be available during a disciplinary proceeding because the police contract would not permit city officials to use them.

“We were unable to get changes in that,” she said, describing years-long negotiations to make changes in compensation systems to avoid what she and other officials said would have bankrupted the city within a decade.

The D.C. Council in Washington in 2020 approved a measure that would prohibit the police contracts with the city from giving the police union involvement in the police discipline process, which currently includes provisions that allow for the erasure of discipline records when the allegations are unfounded. The police union unsuccessfully sued to invalidate the measure.

In D.C., after her son D’Quan Young was shot and killed in 2018 by an off-duty Metropolitan Police Officer, Catherine Young tried to get information from the police about what happened, including the name of the officer, but she was unsuccessful for more than a year.

The city finally released the officer’s name after the D.C. Council made a change in the law. But Young has received few other details, and she is still trying to get all of the video footage and written reports. There has been no public accounting of the officer’s professional history. The officer is no longer on the force, according to a spokeswoman.

Meanwhile, for millions of U.S. residents, it is difficult and expensive to get rid of their own arrest and conviction records. They regularly deal with personal and professional barriers that arise from having a record, even when there is no conviction.

Efforts to mitigate the impact of civilian criminal records and provide a clean slate for people who have chosen a new path have led to approval in nearly every state of some type of erasure of civilian arrest and conviction records.

Yet this too can end up shielding police misconduct. When civilian records disappear, it becomes more difficult for the public to gather information about police practices and arrest patterns.

OFFICERS WHO PERFORM POORLY CAN BE KEPT ON THE FORCE

The problems caused by disappearing records of misconduct and complaints can have a significant impact on the ability of police chiefs and other government officials to weed out troubled officers.

In Phoenix, getting rid of discipline records was routine for at least two decades, allowing purging of discipline for minor mistakes to the use of excessive force. A 2019 report by the Arizona Republic newspaper found the system permitted by the police contract, had allowed the erasure of more than 600 reports of wrongdoing in a five-year period. A new contract this year tightened the rules for purging discipline files.

“When it comes to police misconduct, you can’t say how pervasive it is, if you don’t know,” said former Maricopa County chief prosecutor Rick Romley, who served in that elected post for 20 years.

After leaving office, Romley was asked in 2019 by the Mesa, Arizona, police department to examine two use of force cases. When he went to look for the officers’ past records to see if there were any patterns, he found little of use. The records had been purged. And the police chief who had sought the outside investigation and then changed the policy to end purging many of the discipline records, was challenged by the police unions, and eventually resigned.

Record removal clauses — some for sustained findings of wrongdoing, and others for unsubstantiated complaints — have existed for years in numerous law enforcement contracts, among them: Texas; Baltimore, Chicago, Cincinnati, Columbus, Jacksonville, Las Vegas, Louisville, Miami, Minneapolis, Seattle, and Washington, D.C., Rushin wrote.

Rushin found a total of 87 contracts that allowed for some form of removal of discipline records. And although his work was published in 2017, he said there is little evidence that much has changed in patterns and practices of record removal, which makes it difficult to improve policing and weed out bad actors..

“Those systems are only as good as the data you put into them. You cannot expect to get good results if you don’t have good information going in,” he said.

In Baltimore, Deborah Katz Levi, head of special litigation in the office of the Baltimore public defender, said in 2018 that her office had found 27 instances in which police discipline records which showed sustained findings of wrongdoing had been erased but should not have been.

In October, Marilyn Mosby, the chief prosecutor for Baltimore, released a list of 91 names of officers and former officers with integrity issues, but Levi said there were at least 200 others whose names should be on the list, based on cases she has tracked, and testimony from a police officer in a case she handled.

The Baltimore police contract does not allow erasure of findings of wrongdoing; only of those that are not sustained, and only after three years. Maryland in 2021 enacted a new version of its law enforcement rights legislation that will further open up police discipline records to public scrutiny.

WHY KEEP DATA AND INTERNAL INVESTIGATIVE REPORTS?

Karen Amendola, the chief behavioral scientist at the National Police Foundation in Washington, D.C., a leading independent think tank, said it is crucial for police agencies to hold on to records and data so that chiefs and other supervisors can look for early signs that an officer needs further training to be more effective on the job.

“If you don’t retain that information, in my view, you are being negligent as a manager,” she said. “The idea that we will give away that right is absurd to me.”

The goal, she said, should be to use that data to help officers improve, not necessarily as a punitive tool — although it can eventually be used to discipline or fire an officer if the list of transgressions doesn’t shrink.

She says the data can be useful to help improve the agencies’ work and interactions with the communities they serve, but only if the data do exist.

“It seems to me, if as a chief or sheriff, you don’t have the ability to track the performance of those who are employed by your organization, you are abdicating your authority,” she said.

Of course, the flip side is that officers often receive complaints from angry residents —- and having a raft of complaints doesn’t necessarily signal wrongdoing but could be a sign that the community is tense and police are interacting with residents on a regular basis. So the data need to be examined closely, she said.

A system relying on data and machine learning has been used by the Charlotte-Mecklenburg, N.C. police department and looked at data about events such as discharge of a firearm, car accidents, and civilian complaints, as well as training, traffic stops, arrests and citations, to predict potential risk. The system so far, using historical data, correctly flagged 10% to 20% more officers who had gone on to have problems, and reduced incorrect identification of problem officers by 50%, according to an early analysis of the program.

In 2020, Chicago police put in place its own system. Other cities have been using a version of what was developed for Charlotte-Mecklenburg. Rayid Ghani, a professor at Carnegie-Mellon University in Pittsburgh who led the development of the systems, said they are only as good as the data they can get access to, further highlighting the need for police agencies to be able to retain information in officers’ personnel records and explore other sources of information such as census data and 911 calls.

Initially, officers were skeptical, he said. The more they interacted with civilians, the more often they were flagged by the then-data gathering system used by departments, Ghani said the officers told him. But the new system that he developed with others while he was at the University of Chicago, appeared to quell that anxiety by widening the sources of information and data that are gathered and then fed into a computer program.

WIDESPREAD USE OF ARBITRATION

Once an officer is flagged as a problem, and remedial support hasn’t resulted in improvement, supervisors may decide to fire the officer. But those barriers can be huge. In many police departments, cases of suspension and firing are appealed by officers to an arbitrator, a system spelled out in the contracts between the unions and the government.

A study of 624 arbitration decisions between 2006 and 2020, by Rushin, the Loyola University law professor, found that arbitrators reduced or overturned police officer discipline in 52%of these cases. In cases when an officer is fired, arbitrators ordered police departments to rehire previously terminated officers 46%of the time. On average, arbitrators reduced the length of officer suspensions by approximately 49%.

There are many other tools that might be used in an ordinary investigation of a civilian, but in the case of police officers are not available. Delaware bars municipalities from requiring police officers to disclose their personal assets. California is among several states that bar the use of polygraphs when interrogating police officers. Illinois requires all complaints from outside the police departments to be accompanied by a sworn affidavit, preventing anonymous complaints.

Thirty-two contracts limit managers’ authority to investigate anonymous civilian complaints, Rushin found. Another forty-six “disqualify” complaints after passage of a set time period, he found.

“Bans on anonymous complaints may discourage some individuals from filing complaints against officers,” Rushin wrote, “particularly if they have been victims of police brutality and fear retribution.”.

Miranda S. Spivack is a journalist specializing in government, politics, accountability stories, data-based stories and features, and is a 2021 Alicia Patterson Foundation grantee. Reach her at mirandaspivack@yahoo.com, follow her on Twitter, @mirandareporter.