Oregon Needs To Be Transparent About Police Misconduct
The following was sent to the Oregon Legislature on Friday, June 19, 2020.
Dear Oregon lawmakers:
As you take up police reform, we write to remind you of the old adage that sunlight is the best disinfectant. The proposed legislation now being discussed by the Legislature does not address several aspects of state law that serve to keep police misconduct from ever seeing the light of day. We are sending this letter in the hope that time remains for you to consider doing so.
Our members are passionate about transparency because time after time, Oregonians’ records law has equipped the public with information they need about hidden problems so they can rectify them.
When it comes to police, however, public access to public records is often denied — blocking even grave police misconduct from being made public.
Over the years we’ve seen an increase in statutory barriers to providing the public with information in the public interest concerning police misconduct. Some seem like they could be quickly and relatively easily addressed:
1) Police have taken action to hide police officers’ criminal backgrounds.
Public records at times have been used to unearth relevant information about public employees’ backgrounds — for instance, a bus driver charged with transporting young or disabled people who has a history of sexual assault convictions, or a teacher who spends a month in jail for domestic violence and other offenses while being paid to be in school.
Police, however, took action to make it harder for their own records of off-duty behavior to be scrutinized. In January 2015, reporter Carli Brousseau requested records from the state Department of Public Safety Standards and Training to find out how many officers had committed offenses that led to their firing, but still were allowed to remain police officers. The Oregon Attorney General ordered her request be fulfilled under Oregon’s records law. Instead the state Department of Public Safety Standards and Training sued The Oregonian to block release of the officers’ dates of birth. The reporter was not going to publish these dates, but would have used them to conduct a full criminal background check.
Meanwhile, police unions went to the Legislature to get their members’ birthdates placed off limits, moving the bill through to passage in just a couple of weeks. Unlike in Minnesota, where reporters were able to probe the backgrounds of all police officers in the entire state, in Oregon reporters were forced to limit the focus of their public-service investigation to just 40 police officers in the series Fired, but Fit for Duty.
Solution: Revisiting that police union legislation, and eliminating it, would allow public-service, public-interest access to police officer dates of birth, while still protecting privacy.
Background: https://www.oregonlive.com/police-fire/2017/12/police_discipline_records.html
2) Disciplinary, use of force and internal affairs investigations are kept secret.
Members of the public are often denied access to important disciplinary records concerning alleged police misconduct. They are similarly denied access to internal affairs investigations and use of force reports.
While in theory these records are subject to disclosure with a public interest balancing test, in practice requests for this information are routinely denied. District attorneys, charged with ruling on public records appeals, typically side with law enforcement agencies over requesters even when there is compelling public interest in disclosure. In addition, because sheriffs are elected officials, under Oregon law requesters can only challenge a denial of sheriff’s office records through a lawsuit.
Because of that, the public often only gets access to important records when it can afford a lawyer, as when the ACLU was able to use its resources to appeal two adverse rulings about police use-of-force records to the Oregon Supreme Court.
As that court held in 2016, transparency is crucial because “Without mutual trust, the police cannot do their work effectively and the public cannot feel safe … When it comes to complaints about the use of force and the review of those complaints, the public interest in oversight is particularly strong.”
Even after that ruling for disclosure, Oregon law still gives agencies broad leeway to deny requests for police use of force or misconduct records even when disclosure is clearly in the public interest. In contrast, to ensure public trust, the Oregon State Bar makes all disciplinary complaints, investigations and other records public.
State legislatures in New York and California have already taken action to address this problem.
Solution: Make disclosure of these records presumed to be in the public interest.
3) State and local governments circumvent Oregonians’ public records law by hiding police misconduct behind “attorney-client privilege.”
In 2008 reporters investigated a lengthy complaint to DPSST alleging that then-West Linn police Chief Terry Timeus had tolerated if not encouraged racist and sexually extortive behavior by police officers under his previous command in Lake Oswego. He also helped his friend and roommate get another police job after another police agency had fired the friend — having concluded he had sexually assaulted a dispatcher after visiting her home to drop off a raffle prize.
The resulting investigation of Timeus was kicked back to West Linn and intentionally shielded from ever becoming public by hiding it behind attorney-client privilege.
Reporters, the public, and even the West Linn City Council were denied access to the report of the city’s investigation of the complaint until earlier this year, after Timeus was implicated in the controversial Michael Fesser case involving police misconduct, racist text messages and making an unlawful arrest of an African-American man. Had the city’s investigative report been released when allegations were first raised about Timeus, one West Linn city councilor has said she would have moved to terminate him more than a decade ago. Instead, he continued to lead the West Linn department, drawing lawsuits and additional complaints. Some of those complaints were made by officers who’d tried to expose mismanagement and apparent misconduct by Timeus, only to be forced out.
In 2007, lawmakers tackled the problem of attorney client privilege being used to hide misconduct, but even prosecutors at the time were surprised at how weak the resulting law was. On a regular basis our members are encountering similar uses of attorney-client privilege to stop the public from learning about police misconduct investigations and questionable management by police executives.
Solution: As elected district attorneys wrote in an Oregonian op-ed in 2007: “When it comes to lawyers who work for the government, and therefore for the people, that's wrong. We can protect the attorney-client relationship among government lawyers and the agencies for which they work by establishing a presumption of confidentiality in that relationship. Unlike the current state of the law, however, citizens should be able to petition the courts to overcome that presumption of confidentiality if they can demonstrate a clear and convincing public interest for access to documents.”
We at SPJ would welcome the opportunity to work with interested lawmakers on ways to improve transparency, accountability and public trust. Please do not hesitate to contact us at Spjoregon@gmail.com.
Rachel Alexander, President
Society of Professional Journalists, Oregon Territory Chapter