Editor’s note: This bill passed the state House and Senate and, as of March 28, just needs the governor’s signature to become law. When this story was published, lawmakers were weighing whether the bill should apply retroactively to past internal investigations, but that idea was scuttled as the bill moved through the Capitol.
Imagine you’re arrested by a Colorado police officer. During the arrest, the officer uses such physical force as to injure you. You file a complaint or hire an attorney, or perhaps the American Civil Liberties Union files a lawsuit on your behalf, or the police decide to investigate themselves.
This prompts an internal investigation within that officer’s department.
Months or a year go by before the police determine whether the officer in your case indeed used excessive force. If the officer is found to have acted in accordance with protocol, the department moves on. If the investigation shows your claims of wrongdoing are legitimate, you may settle, out of court, for tens of thousands of dollars of taxpayer money, maybe more.
When it’s all over, you file a records request to read documents related to the investigation. You do this — and perhaps a journalist or lawyer does, too — because you’re curious to see how the police policed themselves in your case.
Recent research shows that your records request is likely to be rejected or ignored. A University of Denver study that examined statewide internal investigations records from 2015 and 2016 found that about 60 percent of records requests resulted in denials or non-responses.
“After requesting 61 particular internal affairs files from seventeen agencies across the state,” that study’s authors wrote, “nearly all agencies were unwilling to release a complete file, regardless of the situation or outcome.”
The ACLU, media organizations and police watchdogs in the state say the Denver Police Department is the only Colorado law enforcement agency that consistently releases comprehensive information following internal investigations. But even in Denver, that practice is only a couple years old.
In most cases in Colorado, a records custodian may send you a written summary of the internal investigation, but the actual documentation related to it will be effectively sealed from you and the rest of the public.
The public deserves more, state Rep. James Coleman believes. For the second year in a row, he’s sponsoring a bill that would require Colorado law enforcement agencies to make the files on completed internal investigations — specifically, investigations into incidents involving members of the public — subject to open records requests.
“The goal for us with this bill is to make sure we have transparency between the folks who are protecting and serving us and the individuals they’re serving,” said Coleman, a Democrat who represents northeast Denver. “Any investigation that has happened, that is a closed case — we should be able to have access to that information.”
The effort has an array of supporters, including the ACLU and Colorado Common Cause, the libertarian Independence Institute and media groups such as the Colorado Broadcasters Association, the Colorado Press Association and the Colorado Freedom of Information Coalition. Colorado Independent Editor Susan Greene also testified last year for the bill.
But the bill also has a host of critics, including police, who fear it would violate officers’ privacy and perhaps invite litigation.
John Cooke, a former Weld County sheriff now serving in the state Senate, believes that if the bill passes, some members of the public could cherry-pick from reports to mischaracterize police conduct.
Coleman’s 2018 bill — indefinitely postponed by a committee in the then-Republican-controlled Senate — was mostly supported by Democrats, though a significant number of House Republicans voted for it, while several Democrats opposed it.
The primary opponents are mayors, city councils and police, including the Colorado State Fraternal Order of Police, by far the state’s largest law enforcement union, which in 2018 called Coleman’s bill “poorly crafted” and introduced “for the purpose of enhancing civil lawsuits.”
“Additionally, this highly litigious, bad piece of legislation reeked with the potential for abuse and unintended consequences,” Fraternal Order of Police staff wrote in a post on the union’s website. The post added, “Law enforcement officers have a legitimate expectation of privacy in any materials or information that may exist within his or her personnel and internal affairs file.”
Fraternal Order staff contacted for this story said the group has not yet taken a position on the latest version of Coleman’s bill, though Executive Director Mike Violette did say, of last year’s bill, “That is something that we cannot support.”
Coleman said he would like the bill to apply to existing internal investigation files, and not just future ones. He said he hopes to tack on an amendment requiring retroactive unsealing, but the bill as currently written doesn’t include any such requirement.
Cooke, the former sheriff of Weld County, said he believes it would be a mistake to add that amendment because many of the people who provided information to investigators did so under the belief that their testimony wouldn’t be made public.
With or without a retroactivity provision, however, Cooke said he’ll oppose Coleman’s bill.
“What scares me is that it could be used more to spread misinformation than for transparency,” he said.
Cooke added that he’s concerned the bill would result in the release of officers’ personal information, which may appear in some of the files in question. But Coleman said that information can and should be redacted.
To date, police accused of wrongdoing have, far more often than not, been afforded that privacy, according to the DU study, entitled “Access Denied.”
“This isn’t about trying to hurt law enforcement in any way,” Coleman said. “It’s about making sure that we fully understand the process by which police are held accountable.”