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Financial Forensic Report 7.12.2021

REQUESTS FOR POLICE INTERNAL AFFAIRS RECORDS SO NOT HAVE TO IDENTIFY A SPECIFIC INCIDENT, COLORADO SUPREME COURT RULES

By: Jeffrey A. Roberts, Executive Director
Colorado Freedom of Information Coalition

The Colorado Supreme Court recently removed a frustrating barrier for some requesters of police internal affairs records, deciding that criminal justice agencies may not withhold completed IA files from the public simply because the requester has not referenced a “specific, identifiable incident” of alleged misconduct by an officer.

The 5-2 decision upheld a district court ruling against the El Paso County Sheriff’s Office for refusing to provide a criminal defendant with internal investigation files about two deputies who were witnesses in her case. The sheriff’s office had interpreted House Bill 19-1119, enacted in 2019, as allowing it to deny requests for IA files for being too “vague.”

It’s hardly the only law enforcement agency to have done so. As the Colorado Freedom of Information Coalition pointed out in a 2020 article, several other police and sheriff’s offices have denied requests for IA records from news organizations, noting that the statute applies to investigations examining the in-uniform or on-duty conduct of a peace officer “related to a specific, identifiable incident of alleged misconduct involving a member of the public.”

In the majority opinion just issued, Justice William Hood wrote that the words “specific, identifiable incident” refer to the types of incidents subject to IA investigations, “not who must identify those incidents as part of a request to inspect investigation files. Therefore, the person requesting access to internal investigation files need not reference a ‘specific, identifiable incident’ of alleged misconduct in the request.”

“The term does not relate to the records request but, rather, to the investigation,” the ruling says. “Thus, when read as a whole, we understand ‘identifiable’ as describing a specific incident of alleged misconduct that is identifiable by the investigating officer so that the investigation could occur.”

The 2019 law “doesn’t require people seeking to inspect the files to know of the specific, identifiable instances of misconduct or that they include such designation in their request.”

The Colorado General Assembly addressed the narrow interpretation of HB 19-1119 by some law enforcement agencies in House Bill 21-1250, which is awaiting Gov. Jared Polis’ signature. In an amendment to the bill, which passed on the last day of the 2021 legislative session, lawmakers removed the phase “specific, identifiable” before the word “incident.” The point of the amendment, said Sen. Julie Gonzales, D-Denver, is to “help the public access … files related to potential misconduct.”

Before HB 19-1119 went into effect in April 2019, establishing a statewide standard for the disclosure of IA records, nearly all sheriff’s offices and police departments routinely rejected requests for internal affairs files, either with a blanket policy or a finding under the Colorado Criminal Justice Records Act that disclosure would be “contrary to the public interest.” (The Denver Department of Public Safety was an exception, regularly providing the disciplinary records of police officers and sheriff’s deputies in response to requests.)

During hearings on the 2019 bill, the Colorado Supreme Court decision says, lawmakers made it “abundantly clear” they sought to eliminate the discretion of records custodians “to deny access to certain internal affairs records and to make it easier for the public to obtain such records without involving the courts.”

“Nothing in the legislative history suggests that a requester should have to identify a specific incident or that the Amendment makes such broad requests impermissible.”

This information is part of an article by Jeffrey Roberts that originally appeared
on the Colorado Freedom of Information Coalition website. 

To access the original article click the link below:
https://coloradofoic.org/requests-for-police-internal-affairs-records-do-not-have-to-identify-a-specific-incident-colorado-supreme-court-rules/

Follow the Colorado Freedom of Information Coalition on Twitter @CoFIC. 

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