Maryland Court Says Baltimore Prosecutors Can't Hide Their 'Do Not Call' List Of Bad Cops From The Public
from the one-of-ten-BPD-cops-useless-in-court dept
Changes in law, court decisions, and transparency efforts have resulted in the public release of names of officers prosecutors consider too unreliable to ask to testify in court. Officers with histories of misconduct or perjury are placed on “do not call” lists by prosecutors who are supposed to hand this information over to criminal defendants.
The lists — known by names referencing precedential decisions (Giglio, Brady) — have historically been closely guarded by prosecutors. But that’s no longer considered acceptable behavior in many parts of the country. Precedent creates an obligation that prosecutors are having a tougher time ignoring as police reform efforts continue to gain traction across the nation.
But are these records public records? Many prosecutors and police unions have argued they aren’t. While they’re ok with begrudgingly handing these over to criminal defendants, they appear unwilling to let the rest of the uncharged public know which officers are considered too problematic to be counted on in court.
Fortunately, the public is scoring a few wins in court over this issue, represented (so to speak) by journalists and transparency activists who seek these records with the intent of making them publicly available. The Maryland Court of Special Appeals has just handed one such win to the Baltimore Action Legal Team (BALT) which requested copies of the Office for the State’s Attorney (SAO) “liar list” of Baltimore cops found to be too untrustworthy to be called on in court. (h/t FourthAmendment.com)
This loss for Baltimore PD opacity started as a temporary win for the department’s bad cops. From the decision [PDF]:
Between December 2019 and January 2020, appellant Baltimore Action Legal Team (“BALT”) made three requests under the Maryland Public Information Act (“MPIA”) to appellee, the Office of the State’s Attorney for Baltimore City (“SAO”). BALT specifically requested that the SAO provide:
1. A list of 305 Baltimore City (hereafter, “City”) Police Department officers with questionable integrity, and supporting information, that Baltimore State’s Attorney Marilyn Mosby stated she maintained;
2. Records relating to any investigations of all City police officers that were closed in 2019 and any such investigations held open for over sixteen months;
3. Charges filed on January 30, 2020 regarding a specific City police officer and records relating to any open or closed investigations of that officer.
BALT also asked the SAO to waive the costs required to reproduce the records sought in requests #2 and #3. The SAO denied the request for the list of 305 officers in its entirety and did not respond to the fee waiver requests accompanying the other two inquiries. Instead, the SAO informed BALT that the estimated cost of production for the records in request #2 would be approximately $15,000 and would require over 438 hours of work, and the cost of production for the records in request #3 would be $3,000.
The lower court agreed with the SAO, finding that this list was exempt from disclosure under the personnel records exemption. The Appeals Court, however, says the list compiled by the SAO (rather than the Baltimore PD) is not a personnel record in the legal sense of the word. The list of 305 officers (roughly 10% of the Baltimore police force) can be publicly disclosed.
An agency cannot claim a personnel records exemption under the MPIA unless (1) the agency has supervisory authority both over the records and the person who is the subject of the records; and (2) the records contain what would be considered “personnel issues,” such as a performance rating, or, generally, “an employee’s ability to perform a job.” The record suggests that the SAO has generated the list, rather than the City’s police department. We understand from the State’s Attorney’s motion for summary judgment that the list was created from City police department’s Internal Affairs documents. Critically though, the internal affairs documentation—whatever an officer did to call into question their credibility—is not part of the list. Only the names of the officers the SAO has deemed compromised appear on the list.
Simply because an officer’s name appears on a list generated by the SAO does not mean that it is now a personnel record, based on the “commonly understood meaning of the term.” It seems to us that the SAO uses the list as a tool to ensure that prosecutions are not compromised by the testimony of officers whose veracity is questioned.
Neither can the SAO claim these are records that would jeopardize ongoing misconduct investigations or criminal proceedings against police officers if the list of names was revealed. The Attorney’s Office apparently made no attempt to determine which officers on the list were currently under investigation. Instead, it chose to treat a narrow exemption like a blanket to shield these officers from BALT’s encroaching sunlight. That hurts its case, says the court.
In this case, the SAO declined to disclose the names of the officers on the “do not call list,” by asserting that the disclosure would interfere “with a valid and proper law enforcement proceeding under GP § 4-351(b)(1).” In response, BALT asked whether all 305 officers were under investigation, to which they received no reply. In not responding, the SAO failed to “demonstrate that it legitimately was in the process of or initiating a specific relevant investigative proceeding.”
Based on the foregoing, we conclude that the trial court erred in prohibiting disclosure given that the SAO invoked a blanket exemption as though all 305 officers were under investigation. That simply was not demonstrated here. And even if the SAO had shown that it was actively investigating an individual police officer, the SAO has not demonstrated how they could have complied with the MPIA request by shielding that individual officer’s name from the list.
Neither are the records “attorney work product,” as the SAO tried to claim. Again, the court says this is a narrow exemption from Maryland public records law, not a preemptive shield to be raised by an office that is hip-deep in litigation at any given time.
From our review of the record, we conclude that even though the SAO constantly faces the prospect of litigation, the “do not call” list was not necessarily created in response to the prospect of litigation. Rather, the list was created for the purpose of alerting prosecutors to the fact that a cohort of officers have questionable reputations and putting them on the witness stand to testify, or to base an investigation on a search warrant submitted by one of these officers, to cite two examples, would potentially jeopardize a prosecution. Consequently, we conclude that the “do not call” was not created in anticipation of litigation, but instead is used more as a tool that the SAO may use to assess the strength of a prosecution.
The win goes to Baltimore Action Legal Team. The records will be freed and the city of Baltimore will be paying BALT’s legal fees. The police department’s bad cops can no longer hide behind abused public records exemptions. If these officers are bad enough they can put prosecutions at risk, the public deserves to know who they are.