from the it's-the-people-that-own-you,-not-the-other-way-around dept
Cops love secrecy. When a citizen does something wrong, it’s a public record. When cops do the wrong thing, union contracts, internal policies, and multiple public records exemptions often allow law enforcement agencies to keep the public from learning about misconduct.
Things have been changing, though. California recently amended its public records law, making police misconduct records publicly available for the first time in the state’s history. New York recently repealed a law that allowed law enforcement to keep misconduct records secret.
The same thing happened in Connecticut. Shortly after the murder of George Floyd by Minneapolis police officer Derek Chauvin, the legislature passed a law that nullified state Freedom of Information Act exemptions that allowed law enforcement agencies to withhold certain misconduct records.
The Connecticut State Police Union (CSPU) didn’t like this unexpected level of transparency. It sued the state official tasked with upholding the law, claiming the collective bargaining agreement it had signed a year earlier contained these exemptions and that the state’s new law violated the Contracts Clause of the US Constitution by basically overriding that portion of the contract.
The district court denied the union’s attempt to enjoin the law — one that specifically forbade any future police union contractual language that would undermine the alterations to the state’s public records law. (The law also applied retroactively, nullifying the language in the union contract). It said the government’s interest in increasing police transparency and accountability was aligned with the public’s interests, in contrast to the bargaining agreement language, which only benefited police officers accused of misconduct.
The Second Circuit Appeals Court agrees with the lower court. It also points out in its decision [PDF] that it was the exemptions granted in the union contract that upset the status quo. The law passed after the George Floyd murder simply reset things back to the way they were. (h/t Courthouse News Service)
That the original text of Connecticut’s FOIA did not contain the exception for police disciplinary records created by the 2018 collective bargaining agreement indicates that the legislature, in creating a broad mandate for open government in the public interest, adopted the very public policy with respect to police records that the CSPU characterizes as self-interested or favoring narrow special interests. It was, to the contrary, the collective bargaining agreement that introduced a special contractual departure from the original policy to satisfy a powerful group of public employees. The restoration of the prior FOIA regime exemplifies the point that the legislature cannot permanently bargain away its responsibility to govern in the public interest.
The Appeals Court doesn’t care for any of the union’s arguments. The state was justified in its alteration of the contract.
The CSPU argues that there was no change in circumstance that could have justified impairing the collective bargaining agreement. But Floyd’s murder, and the nationwide protests it prompted, presented precisely the sort of changed circumstance to which the legislature might reasonably have wished to respond.
As for the union’s insistence that the elimination of this exemption would allow the public to obtain records detailing nothing more than accusations against officers, the Appeals Court says “So what?” This is all part of the transparency and accountability the legislation was written to achieve.
The CSPU counters that Floyd’s murder could not have justified the FOIA provisions of the Act because disclosing investigations that result in a disposition of “exonerated,” “unfounded,” or “not sustained” would simply disseminate “false allegations of misconduct” rather than truly address the absence of police accountability. We disagree. As the Commissioner points out, the fact that a complaint results in such a disposition does not necessarily mean that the allegations were false. It could also mean that there was insufficient or disputed evidence to substantiate the complaint, or that the complained-of action occurred but was proper under the circumstances. At a more general level, the public may often have a strong interest in learning about a complaint even when it does not justify disciplinary action.
The Appeals Court says the public’s interests were being served by the state legislature — a legislature that was understandably compelled to increase accountability and repair the damaged trust created by years of lax oversight and law enforcement’s tendency to control the narrative by restricting access to misconduct records. All the law did was undo the damage done by the union contract. And that’s simply not enough to create a constitutional violation.