Maryland Court Says Police Misconduct Files Can Be Withheld From The Public

from the do-whatever-you-want,-the-public's-never-going-to-find-out dept

A bad ruling has been handed down that will make it much more difficult for the Maryland citizens to find out the extent of misconduct performed by public employees. The court there is nodding to an expectation of privacy that really shouldn’t exist in the public sphere and, in doing so, has provided that much more obscuring darkness for badly-behaving cops.

The Maryland appeals court has ruled that police departments’ internal investigation documents are “personnel files” and thus exempt from public records requests. The decision came in response to a lawsuit filed by the ACLU on behalf of Taleta Dashiell, who was seeking a copy of documents related to her own sustained complaint against Sgt. John Maiello of the Maryland State Police.

Contributing to this bad decision is a handful of “extra rights” that have been granted to the state’s law enforcement officers.

After the Court of Special Appeals determined that the Circuit Court erred by not requiring the State Police to create an index of the withheld documents and by not conducting an in camera review of the documents, the State filed a writ of certiorari asking us to consider the following question:

Did the Department of State Police properly invoke the Maryland Public Information Act’s (MPIA) exemptions for personnel records and records that are confidential under other law — here the Law Enforcement Officers’ Bill of Rights — to deny a request for the internal affairs records of an investigation into the conduct of a specifically identified state trooper?

Maryland, unfortunately, is somewhat of a pioneer in giving certain public servants more rights than other public servants, and more rights than the public itself, the latter of which has the dubious privilege of paying the salaries of these “more equal” police officers.

Maryland was the first state to pass a LEOBR, in 1972, and by now many states have followed, invariably after lobbying from police unions and associations. Often the bills are sponsored by Republicans, who seem to forget their normal skepticism of public employees as an interest group when uniformed services are involved.

Among other things, the LEOBR grants police officers the “right” to have up to 10 days to respond to misconduct allegations and to be able to appoint a lawyer of their choosing to represent them in what is normally just an employer-employee interaction anywhere else in the working world.

Dashiell was attempting to obtain documents related to her complaint against Officer Maiello, who was captured on her voicemail referring to her (twice) as a “nigger.” From that point forward, the Maryland State Police did everything it could to keep her from seeing anything related to Maiello or her complaint.

Supposedly, the state provides an exception to the personnel records exception in the case of the “person of interest” — which should have covered Dashiell’s request. Despite existence of such records being confirmed by a letter from the MSP to Dashiell, the department refused to turn over the requested files. The MSP was creative in its stonewalling of Dashiell’s request, treating the retirement of the officer charged with fulfilling requests as the end of the line for this inquiry.

The MSP returned the March 2, 2010 MPIA request to the ACLU stamped “addressee unknown.” Apparently, unbeknownst to Ms. Dashiell and the ACLU at the time the MPIA request was sent, Lieutenant Colonel Fischer had retired from the MSP.

The MSP returned the MPIA request, failing to even identify the new custodian, rather than deliver it to the current custodian of records.

Dashiell sent a new request to the new custodian of records, which was denied in its entirety — including her request for, if nothing else, an index of the records held.

The lower court granted the MSP summary judgment, claiming the files requested were exempt from disclosure, even considering Dashiell’s “person of interest” status. She appealed, but the appeals court has now arrived at the same conclusion.

The court’s opinion says that the law is law, no matter how stupid under these specific circumstances. The sustained complaint is treated no differently than an unsustained complaint and no matter how much information has been made public already, the officer’s privacy trumps the public’s interest. The court strains credulity by suggesting the release of such information would negatively affect future misconduct investigations.

The plain language of the Public Information Act, also, does not differentiate between “sustained” and “unsustained” complaints. A determination that a sustained finding requires disclosure of personnel information, though, would affect all public employees, not only the police force. Further, mandatory disclosure of personnel information related to sustained findings could chill the disciplinary process, rendering those in control less willing to sustain a finding of misconduct.

It is insane that the court would actually believe that the public has the power to actually “chill” any government action. The state’s laws — combined with the Bill of Rights extended to police officers only — create their own chilling effect. Police officers know that it’s highly unlikely any record of their misconduct will ever reach the eyes of the public, which creates an incentive for future abuse. This has a chilling effect on citizens, who know that it’s highly unlikely any officer will receive significant discipline for wrongdoing, as the entire process is allowed — by law — to be conducted in total darkness.

The court also points out that it agrees with lower courts’ findings: despite Dashiell being the one to file the complaint, she is not the “person of interest.” Officer Maiello is. So if anyone is ever going to make records of police misconduct complaints public, it can only be the officer against whom the complaint was filed. Which means this will NEVER HAPPEN.

Two judges offered their dissenting opinion, pointing out that the majority expressly dodged a question crucial to the determination of whether these files should be eligible for “personnel information” protection. There’s a difference between “unsustained” and “sustained,” and the court has chosen bypass this delineation and defer to the law’s wording instead.

This result is far different from the circumstance of permitting unsubstantiated allegations of a complaint to be made public. In sustaining a complaint against one of its officers, a law enforcement agency acknowledges the truth of the very facts that “directly pertain to employment and [the officer]’s ability to perform [his or her] job.”

In contrast to such facts, the discipline that the law enforcement agency decides to administer to the officer does not directly pertain to employment or the officer’s ability to perform his or her job. Plainly put, the officer did what the officer did, regardless of how the law enforcement agency decided to respond. The administration of the discipline is an action of—and thus reflects the judgment of—the law enforcement agency, not the officer. Thus, a record of discipline based on a sustained complaint against a law enforcement officer is not a personnel record; instead, it is among the very types of document that the Public Information Act is designed to make available to the public: a document that reflects how a public agency responds to an employee’s proven misconduct.

This is how it should be. But it isn’t. The state law allows misconduct to go unexamined and grants public employees a privacy expectation in their publicly-funded employment that simply shouldn’t exist. Even records related to unsustained complaints are of value in terms of accountability, but at the very least, records of sustained complaints should be excluded from the law’s personnel records exemption.

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Comments on “Maryland Court Says Police Misconduct Files Can Be Withheld From The Public”

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That One Guy (profile) says:

Further, mandatory disclosure of personnel information related to sustained findings could chill the disciplinary process…

What ‘disciplinary process’?

In the vast, overwhelming majority of the time, the only time an officer is ‘disciplined’ or ‘held accountable’ for their actions is if the public gets involved and forces the matter, often via a lawsuit, such that the police can’t just brush it under the rug and pretend nothing happened.

The idea that anything the public could do would decrease the odds of police being held accountable for their actions is a joke that’s not even close to funny. There’s not exactly much room to sink when you’re already at rock bottom.

…rendering those in control less willing to sustain a finding of misconduct.

Yes indeed, because as everyone knows, if there’s one thing that is guaranteed at the police precinct, it’s those in charge being willing to hold the officers beneath them accountable for their actions.

You also just have to love their argument here. They’re basically saying that police would be less likely to hold their own accountable, if doing so would have negative repercussions for those found guilty of whatever action/activity they are accused of.

From that argument, it follows that they are saying that police are likely only to find one of their own guilty of ‘misconduct’, if doing so carries no penalty, and that that is how it should be.

That’s not just admitting that the system is broken, it’s doing so and then endorsing the fact that it’s broken.

tqk (profile) says:

Re: Re:

That’s not just admitting that the system is broken, it’s doing so and then endorsing the fact that it’s broken.

I think that simply instituting a LEOBR is acknowledging that the system is broken, but that the Special Snowflake police shouldn’t have to suffer for it like ordinary citizens have to. Wouldn’t it be better for all to fix the broken system so it protects everyone from injustice?

“Some animals are more equal than others.” — G. Orwell.

Anonymous Coward says:

Re: Re:

It depends on who you are referring to. If you are referring to the public interest then, yes, the entire system is broken (from how politicians are bought and paid for to how police go unpunished unless mass protests ensue). If you mean for corrupt government and corporations that buy government the system works just fine.

Anonymous Coward says:

Re: Re:

Not only that but it will also heighten the mood for vigilantism against COPS and increase public awareness of foul police behavior. It will only bring an even large microscope over them.

I think this nation needs to start getting more like Russia with the dash cams for fraud protection but on a more personal level where they can automatically begin to stream officer interactions straight to the web where police cannot tamper with the evidence.

It is clear that not only are the Police and the Agencies that oversee them getting even more corrupt, they are not even trying to hide their own corruption, instead using the idea of state secrets to leave their evils to the public’s imagination instead.

This is why I do not care if an office is wrongly accused of anything because they have already committed so many innocents themselves without a care in the world.

I will only give officers of the law any respect when they start earning it again.

GEMont (profile) says:

Re: Re: Re:


They don’t need no steenking respect!

They need your ass in a cell so they can collect their minimum monthly collar bonus, and they need your paycheck to be confiscated as the proceeds of crime and divvied up at the station, and they need your car and house, to be arrested for trafficking in narcotics and sold at auction for funding the annual policeman’s ball party, and they need your drugs and jewelry for street resale, and they need your girlfriend to give them head or they’ll bust your ass for 25 years worth of nasty charges that they’ll make up on the spot.

These are your Masters and they are armed to the teeth and whatever you got is theirs by right of might.

And, in their own vernacular: “Your ‘respect’ won’t buy us shit, so shove it.”

Vidiot (profile) says:

Lesson in legality

Dear Maryland State Police –

Thanks for the guidance you’ve provided in this FOIA response. Since you’ve slightly misspelled my Teutonic surname (your keyboard has no umlaut?), I’ve marked your traffic summons “Addressee Unknown” and will not attempt to correct the error. Thanks for indicating that it’s okay to handle things in this way.


Werner Fahrvergnügen

Anonymous Coward says:

Didn’t take much reading here to realize who the real “nigger” in this story is. Officer Maiello. I guess we could chain him to a desk in the basement and force him to take anger management courses, but am reasonably certain it would be to no avail. Sounds like her only recourse is the Fed, but don’t believe she will find any satisfaction there either.

Anonymous Coward says:

This is probably an overly optimistic view, but I’ll share it anyway. If she had prevailed, that would likely be the end of this story, at least from the perspective we care about. Since she lost, there is the opportunity, albeit a slim one, to use this case as an example of why the Maryland Law Enforcement Officers’ Bill of Rights needs to be amended (or possibly repealed entirely, depending on what other abominations it contains). Legislators love a good human-interest-driven bill, and “Victim of police misconduct wronged by a technicality” seems like a great lead-in to the press release announcing a bill to correct that technicality.

Anonymous Coward says:

Re: Re:

No way, her complaint would have opened up a can of worms of racism that is openly allowed to flourish in that department. He personally has been accused of that on multiple previous occasions and it has been white washed every time. This would of course lead to questions about who and how and there aren’t enough tax dollars even in that rich county to pay for all the litigation that would ensue. So in reality they are helping us by keeping the truth from being known.

Anonymous Coward says:

Compare to Debra Milke case

Compare to Milke v. Ryan. Mar. 2013


Petitioner Milke’s conviction was based largely on the
testimony of Police Detective Saldate, who allegedly obtained her confession. The panel held that the state remained unconstitutionally silent instead of disclosing information about Det. Saldate’s history of misconduct and accompanying court orders and disciplinary action …

Reviewing the Brady claim on the merits, the panel first
held that evidence in Det. Saldate’s personnel file,
documenting the detective’s lack of compunction about lying
during the course of his official activities, was favorable to Milke’s defense and likely would have affected the sentence. The panel next held that state knew of the evidence in the personnel file and had an obligation to produce the documents, and that there is a reasonable probability that disclosure of the evidence would have led to a different result…

Milke argued that she had been denied her constitutional right to cross-examine Saldate because the state did not give her access to impeachment evidence in his file…

Accompanying her impeachment-evidence claim, Milke attached documents from cases in which Saldate had committed misconduct…

************ Apr. 2105 – Arizona Republic

Milke, was sentenced to death for allegedly arranging the murder of her son. But her conviction hinged largely on the testimony of Phoenix police Detective who claimed that Milke confessed. There were no witnesses to the confession and no tape recordings.

The 9th Circuit claimed that prosecutors violated Milke’s constitutional rights by not turning over negative information from Saldate’s personnel file. The Arizona Court of Appeals agreed and dismissed the case, saying it would amount to double jeopardy to retry Milke.

Montgomery protested vociferously. After the Arizona Supreme Court turned down his appeal of the dismissal, he asked for it to be depublished because it would be too expensive and “almost impossible for the state to satisfy” if prosecutors were required to vet the “testimonial and personnel records of every law enforcement witness in a criminal case.”

********** Steptoe & Johnson Apr. 2015

“There is no doubt in my mind that Brady does include ‘the entire testimonial and personnel records of every law enforcement witness in a criminal case,’” Mr. Charlton says. “It is no excuse to say that I, as the prosecutor, did not know. It’s not too great a responsibility to know if an officer has a history of misstatements or lying. To argue otherwise is disconcerting.”

Dennis Woody Powers says:

MSP Troopers committing overtime fraud against the state.

7 more state police troopers facing investigation for overtime pay theft. Gets Them [all] the time.

State Police have declined to release the names of troopers involved in the scandal.
Troopers allegedly used a variety of methods to inflate their overtime pay, according to several troopers and attorneys aware of the investigation.
Troopers allegedly falsified dates and times on tickets to claim they were working overtime and ultimately filed bogus tickets with the agency.

The practice, according to troopers and attorneys, was widespread and took place over several years.

The State Police internal audit so far has focused on overtime shifts worked in 2016.

The defense attorneys said that while the Police Department is working to change its culture, they believe the Baltimore City State’s Attorney’s Office enabled and encouraged the officers to break the law.

Musa says her criminal defense lawyers association is calling on cities to create neutral arbiters – a separate body or panel — to review body cam footage. This potentially key evidence, she says, "should be equally available to both, and I think it removes some questions if it’s held by an outside party."

"The lesson out of all this is that officers should not have discretion to turn their cameras on and off," Katz Levi with the public defenders office says. "Body cameras, particularly in Baltimore, were instituted to try to reestablish trust with the community, and giving officers discretion to manipulate the body cameras is doing just the opposite."

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