The mere existence of unchecked "confidential" department files on police misconduct exposes the department and locality to significant liability. The International Association of Chiefs of Police's Counsel, Milton Thurm, recently reviewed excessive force investigations and their effect on the civil liability of police departments and officers. In that review, he emphasized the extent to which the findings and conclusions of internal affairs investigations are discoverable in civil suits by an arrestee. His conclusions were that especially in Civil Rights suits under Section 1983, plaintiffs may be very likely to discover even "confidential files" arising out of an internal affairs investigation for use in such litigation. See Gentile v. County of Suffolk, 926 F.2d 153 (2d Cir. 1988).
Complaints filed against police officers that do not result in the complete exoneration of the officer's conduct are more than likely to be admissible with respect to establishing a police department policy or custom of depriving individuals of their constitutional rights. It follows that a police department which leaves an unchecked paper trail of alleged nonfeasance or misfeasance by officers help pave the way for a favorable result in plaintiff's Section 1983 actions, even those which are not properly founded. See Riciutti v. New York City Transit Authority, 754 F. Supp. 980 (S.D.N.Y.).
Seeking the admissibility of probative investigatory reports in excessive force litigation, both internal and external, appears to have developed into an effective tool for the Section 1983 plaintiff endeavoring to hold the municipality, in addition to the individual officers, liable.
What is quite clear from all of this is that internal affairs files are ultimately not confidential, and material in them, even old unsubstantiated material, is available to those who would impose civil liability on a police department or a police officer. Coward v. Richmond, LA-2780 (Rich. Cir. September 24, 1996) (Judge Markow ruling internal affairs files are neither privileged nor confidential and shall be disclosed.) This situation leads to a second serious problem.
In many departments, police officers are denied access to internal affairs files. In some departments, partial access may be granted during the preparation period for a disciplinary hearing, but most often even access of this type is denied. In many situations, a police officer only sees internal affairs collected information when it is used against him and has no access to
such information when it would support him. The practice undermines the due process rights of working police officers guaranteed by the Constitution. See, Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487 (1985). Every working cop deserves the right to review and the right to respond to everything about him or her in a police department's records. However, the practice of denying the working officer the right of review of all files kept by a police department, especially when combined with an internal affairs confidential file system which preserves all records permanently, creates a situation which could easily expose the department and the police officers to increased civil liability and detrimental personnel decision-making.
The problem involves both the need to protect the law enforcement agencies from civil liability and the need to treat working officers fairly based on accurate records.
Police departments often start investigations based upon mere rumor. Once an investigation has started, an officer is often not informed of the investigation, never told that an investigation even took place, or that any record exists. Further, even when the charges prove unfounded, the record of the investigation is often kept, and may be used to prevent the promotion of the officer or as evidence in a civil case. Thus, an officer with what appears to be an exemplary record, may, without his knowledge, have a separate file with unfounded charges which inhibits his promotion and exposes both the officer and the law enforcement agency to liability.
The code permits citizens to review files kept about them by the criminal records exchange and provides a system for them to challenge or purge information. Va. Code Section 9-192. Although the procedures will necessarily be different for law enforcement employees, the principle that applies to citizens - namely that they have a right to review records kept about them - should also apply to law enforcement employees.
This Police Privacy Act addresses the current inequities and helps protect departments and localities from civil liability by insuring that the police officer has the right to review his entire record; giving the police officer the opportunity to submit rebuttal to any negative material; insuring that the police department will not release negative information except in certain limited circumstances; and requiring that once an investigation is completed, the police officer is informed of the results and, if the allegations prove unfounded, that the investigation will not be used against the police officer. See Section 2.1-116.9:7 et. seq. The Act contains no provision which would require the expungement of any documents. The Act's Provisions regarding the disclosure of the investigations do not apply to open, ongoing investigations of police officers. Thus, not only will this Act serve to reduce the potential civil liability of police departments, but also to increase the fairness of the disciplinary and record systems currently used by police departments. This in turn will further serve to increase the morale and retention of police officers.
A Bill to Amend the Code of Virginia Title 2.1, Chapter 10.1:3 consisting of sections numbered 2.1-116.9:7 through 2.1-116.9:15.
Be it enacted by the General Assembly of Virginia:
1. That Chapter 10.1:3 consisting of sections numbered 2.1-116.9:7 through 2.1-116.9:15 is amended as follows:
§ 2.1-116.9:7. Law Enforcement Officers and Employees Privacy Act.
Definitions.
As used in this chapter:
"Law-Enforcement employee" or "employee" means a person currently employed or formerly employed by an employer, who was or is not a law enforcement officer.
"Law Enforcement Employer" or "Employer" means any state, county, city or town law-enforcement agency which has four or more officers or employees, including any agent of the employer.
"Law enforcement officer" or "officer" means any full or part-time employee or former employee who was or is responsible for the prevention and detection of crime and the enforcement of the penal, traffic or highway laws of the Commonwealth.
"Personnel record" means any record created or kept by an employer, including separate files kept by a criminal investigation agency as part of an investigation that identifies the officer or employee to the extent that such record has been or could be used to affect such officer's or employee's employment, promotion, transfer, additional compensation, or disciplinary action. A personnel record shall not include (i) references supplied to the employer if the identity of the person making the reference would be disclosed; (ii) materials relating to the employer's staff and personnel planning, including salary increases, management bonus plans, promotions, and job assignments; (iii) information of a personal nature about a person other than the officer or employee if disclosure of the information would constitute a clearly unwarranted invasion of the other person's privacy; (iv) information that is kept separately from other records and that relates to an ongoing investigation by the employer pursuant to §2.1-116.9:14.
§ 2.1-116.9:8. Officer's and Employee's right to review records.
Upon request, an employer shall provide any officer or employee with an opportunity to review the officer's or employee's own personnel record as provided by law. The review shall take place at a location where the employer keeps the records and during normal office hours. The employer may allow the review to take place at another time or location that would be more convenient to the officer or employee. If a review during normal office hours would require an officer or employee to take time off from work with that employer, then the employer shall provide some other reasonable time for the review.
§ 2.1-116.9:9. Scope; limitations.
Personnel record information which was not disclosed or included in the personnel record when reviewed by the officer or employee pursuant to §2.1-116.9:8 but should have been, shall not be used by an employer in any judicial or quasi-judicial proceeding against an officer or employee. However, materials which should have been disclosed or included in the personnel record shall be used at the request of the officer or employee.
§ 2.1-116.9:10. Duplication of records; fee.
After the review provided in Section 2.1-116.9:8, a law-enforcement officer or employee may obtain copies of any and all information contained in his personnel record. An employer may charge a fee for providing copies of the information contained in the personnel record. The fee shall be limited to the actual incremental cost of duplicating the information.
§ 2.1-116.9:11. Removal or correction.
If there is a disagreement about information contained in a personnel record, the employer and the officer or employee may mutually agree to remove or correct such information. If a mutual agreement is not reached, the officer or employee may place in the file a written statement explaining his position. The statement shall not exceed five sheets of 8-1/2 inch by 11 inch paper and shall be included with the information which is divulged to a third party as long as the contested information is a part of the file. If any officer, employee or employer knowingly places information in the personal record which is false, legal action shall be available to the other parties to have such false information expunged.
§2.1-116.9:12. Disclosure of records.
A. An employer or former employer shall not divulge a disciplinary report, letter of reprimand, or other disciplinary action to: (i) a third party, (ii) a party who is not a part of the employer's organization, (iii) a party who is not a part of a labor organization representing the officer or employee.
B. Records may be disclosed if: (i) The officer or employee has specifically waived his rights under this section as part of a written, signed employment application with another employer; (ii) the disclosure is ordered in a legal action or arbitration to a party in that legal action or arbitration; or (iii) the information is requested by a government agency as a result of a claim or complaint by an officer or employee.
§ 2.1-116.9:13. Separate records.
If the employer is a criminal justice agency which is involved in the investigation of an alleged criminal activity or the violation of an agency rule by an officer or employee, the employer shall maintain a separate confidential file of information relating to the investigation. Once the investigation is completed any records created shall be considered a personnel record as defined in this chapter. Upon completion of the investigation, if the investigation reveals that the allegations are unfounded or unsubstantiated or disciplinary action was not taken, the officer or employee shall be notified that an investigation was conducted. The separate confidential file shall contain a notation of the final disposition of the investigation and information in the file shall not be used in any future consideration of promotion, transfer, additional compensation, or disciplinary action of the officer or employee.
§ 2.1-116.9:16. Penalty for noncompliance.
If an employer violates this chapter, an officer or employee may commence an action in the circuit court to compel compliance with this chapter. The circuit court for the county in which (i) the complainant resides, (ii) the complainant is employed, or (iii) the personnel record is maintained, shall have jurisdiction to issue the order. Failure to comply with an order of the court may be punished as contempt.
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