Open records bill no longer gives public access to completed police internal affairs investigations

Update: A previous version of this story was updated to indicate the House passed a watered-down version of the bill on Thursday, May 3. 

Proposed legislation to shed light on police misconduct was rewritten in the House on Wednesday, stripping a key provision that would have allowed the public to access internal investigations.

Currently, police departments have broad discretion over whether to release the findings of internal affairs investigations. And in Colorado, the majority of requests for these records are either ignored or denied, according to a recent University of Denver study.

The House Judiciary Committee last week voted 7-4 to pass a bill that would have made these investigations public. The bill would have required the entire investigation, including witness interviews, video and audio recordings, documentary evidence, transcripts and final departmental decisions, to be available for public inspection after the investigation is completed and any associated criminal case is adjudicated. Information that would jeopardize the safety of the public, officers, victims, witnesses or informants could be redacted.

The House passed a watered-down version of this bill 40-25 on Thursday. The proposed law no longer requires that these investigations be made publically available. It does, however, require police departments to provide a written justification for why a request was denied.

“I think it still does show our community that our law enforcement and our folks in the city are willing to work to try to provide more transparency with taxpayer dollars,” said Rep. James Coleman, the Denver Democrat who is sponsoring the bill.  

While the bill covers all completed internal affairs investigations, national attention has been focused on excessive use of force cases as videos surface on social media of police officers, most of them white officers, choking, Tasing or shooting African-Americans. One video that has been posted widely on social media involved an Aurora police officer Tasing a black man in the back in 2016. Last year, the City of Aurora settled claims brought by the American Civil Liberties Union to pay Darsean Kelley $110,000 for the incident. The police department denied any wrongdoing. The investigation into the incident has not been released to the public.

Public access to this investigation would help taxpayers understand why the police department insisted there was no wrongdoing and what is being done to make sure this doesn’t happen again, said ACLU of Colorado staff attorney Rebecca Wallace.

Supporters of the proposed legislation as introduced — which included the Colorado Freedom of Information Coalition, the Colorado Press Association and Colorado Common Cause — said making this information public would have also helped clear the cases of police officers who are featured in videos that may be misleading.

“Transparency works both ways,” Susan Greene, editor of The Colorado Independent and a press association board member, told committee members.

Also present in the Judiciary Committee room last week were current and former police officers and police union members. Opponents of the legislation said it would have prevented officers from being candid and open during investigations.

“You can’t have that if everything you say can and will be used against you,” said Rep. Yeulin Willett, a Republican from Grand Junction who voted against the bill. Willett also works as an attorney.

Others were concerned that the original bill removed the role of the courts in weighing officer privacy and the public interest. Donald Sisson, who represents the Colorado Fraternal Order of Police, said the current process balances those two interests.

“Transparency is very important, but so are the privacy interests of police officers,” Sisson told the committee.

Rep. Dylan Roberts, a deputy district attorney from Eagle County, was the only Democrat to vote against the bill in committee. He agreed that the courts should play some role deciding what is released.

The bill that passed the House on Thursday did not change current law which allows courts to balance public interest and privacy when deciding whether to release investigations. Roberts still voted against the bill. 

“I understand there is a problem in the state of Colorado,” Roberts recently told The Colorado Independent. “(But) I understand that it’s not just a totally black and white issue.”  

Title photo: Tony Webster, via Creative Commons, Flickr