Police Nondisclosure Rises to a New Low

by Wendy McElroy, Future of Freedom Foundation
Jan. 17, 2012

KOMO News reports (Jan. 4) that the City of Seattle is taking an attorney to court because he requested public records.

The legal tug-of-war that will almost certainly ensue has national importance, not only because the lawsuit sets a precedent, but also because it is part of the city’s resistance to a Department of Justice (DOJ) attempt to rein in police abuse across America. The lawsuit also offers a glimpse into the lengths that police departments will go to reduce their own transparency.

An earlier KOMO News headline (Dec. 20, 2011) had optimistically announced, “City, Police Leaders ‘Ready to Tackle’ Harsh Federal Review.” Days before, the DOJ review had accused the Seattle Police Department (SPD) of violating the civil rights of those arrested and using excessive force. For example, one of the report’s findings is that “when officers use batons, 57 percent of the time it is either unnecessary or excessive.”

Thomas E. Perez, an attorney for the DOJ’s civil-rights division, stated of the review, “Our findings should serve as a foundation to reform the police department and to help restore the community’s confidence in fair, just and effective law enforcement.”

The DOJ is attempting to restore waning public confidence in local police forces who are increasingly viewed as brutal and out of control. Thus, the Seattle review is only one of twenty current DOJ investigations into police departments, with special focus upon their use of force.

Videos have played a significant role in the erosion of public confidence and in bringing police misconduct into sharp focus. The DOJ review states,

The public developed its belief that the [Seattle] department engages in discriminatory policy through their own negative experiences, well-publicized videos of force being used against people of color, incidents of overt discrimination, and concerns that the pattern of excessive force disproportionately affects minorities.” (emphasis added)

The DOJ itself reviewed hundreds of SPD videos in its investigation. One of them was almost certainly a 2010 video from Officer Ian Birk’s patrol car that showed an encounter in which he fatally shot John T. Williams, who was crossing the street holding a small folded knife and a piece of wood; Williams was a woodcarver. His death was later judged to be “unjustified.”

Seattle Mayor Mike McGinn and Police Chief John Diaz initially reacted to the DOJ review by dismissing its findings as mere allegations. When some city councilors were not satisfied with their reaction, McGinn and Diaz stated their intention to work with the DOJ on “a legal fix.” Now, with two lawsuits — one against the City and the SPD, the other being brought by them — the “fix” seems to be in. And it may be bad news for those who seek the police in-car recordings that have so embarrassed the SPD.

The lengths to which the SPD will go to reduce transparency

In September 2011, KOMO News filed a lawsuit against the City of Seattle and the SPD “for violations of the Washington Public Records Act” (PDF). Under that act, both defendants, as public agents, are legally obligated to make public records available for inspection unless those records are specifically excluded from disclosure. In the past, police in-car recordings of street events have not been excluded. Indeed, chapter 260 of the SPD Policies and Procedures manual requires officers to inform people on how to obtain a copy of such recordings.

In July, 2010, KOMO news reporter Tracy Vedder started submitting a series of requests, partly in order to build a log of SPD in-car videos for future use. She quickly encountered obstacles, real or fabricated. On August 3, Vedder requested the manuals used for the recorders and was refused on the grounds of copyright. On August 4, she requested a copy of “log sheets that correspond to any and all in-car video/audio recordings which had been tagged for retention by officers.” She was told that there were “no records being responsible to your request.” A reformulated request received the same response.

On August 18th, Vedder asked for “a copy of a single retention report, of the department’s choice, for a digital in-car video/audio recording that has been tagged for retention by Seattle police officers any time from January 1, 2009 to the present.” According to court documents, instead of a retention report, she received “a document entitled ‘View Video Logs’ showing the … user interface that had three search parameters: date range, event type and user ID. One of the event types was ‘retention.’”

After another unsuccessful request, Vedder appealed her denial to the legal advisor of the SPD chief of police. When there was no timely response, on December 7th a lawyer for KOMO made a similar appeal. The SPD legal advisor maintained that the SPD was unable to generate a list of retained videos and had gone so far as to contact the vendor of the system (Coban). Coban confirmed that “under the current platform, SPD is not able to create such a list and download videos based upon the requestor’s parameters.”

KOMO’s lawsuit notes,

Product literature for Coban from the Internet states that the Coban DVMS provides a central point of management and has a video search function that enables users to search for videos using “more than 20 search criteria fields.” It states that the DVMS allows administrators to configure and manage video files including retention and archival actions and provides for a detailed audit trail of all video.

Moreover, a Coban promotional video on YouTube presents SPD’s Forensic and Digital Imaging Manager Karim Miller stating

I know that the individuals that work with the back office are amazed about the way they can search for items, date, time, officer name, serial number, incident number. So it just has a lot of, I guess you would say, open features .… You know it’s pretty amazing. The process to actually make copies and get them distributed is pretty much limited to your sort of imagination.

In short, the SPD seems to have lied in order to deny Vedder’s request for retained videos and reports and yet appear to comply with the law.

Other maneuvering occurred. In a meeting on March 23, 2011, city officials claimed that they were legally unable to produce any recording made in the last three years. But the statute they cited specifically barred only the production of recordings for which criminal or civil litigation had not been concluded. The SPD explained that the three-year freeze was necessary to protect itself and the city from possible litigation. However, the Coban system is configured to automatically erase recordings at the three-year mark.

Nevertheless, as a compromise measure, the SPD agreed to provide Vetter with recordings from a period of time in 2007. (How this was possible given Coban’s automatic erasure is not explained.) The requested videos were produced in April, but Vedder was permitted to view them under highly restricted circumstances; for example, she was limited to viewing for two hours a day at the police station. When Vedder turned up day after day for weeks, action on her requests began to be delayed by weeks and, then, months.

In the summer of 2011, Vedder learned that an independent individual had requested and received “a copy of the full and complete database of all Coban DVMS activity logs, in electronic form.” The database revealed that thousands of “retained” videos had been erased before their specified 3-year period. Vedder could not induce the SPD to give her similar records.

The lawsuit followed shortly thereafter.

The SPD sues attorney James Egan

Criminal-defense attorney James Egan recently filed for thirty-six SPD recordings on behalf of two clients who are suing for police misconduct. He wanted to establish whether or not certain officers had a history of misconduct. He was refused on the grounds of privacy. Egan repeated his request and threatened to seek “statutory damages at the maximum level based on the Public Disclosure Act.”

In a news story entitled “City Fights to Keep Police Videos Secret,” the Seattle Post Intelligencer (Jan. 9) commented on the case,

While the city has previously released in-car video — including one taken shortly before woodcarver John T. Williams was shot to death by an officer — Seattle City Attorney Pete Holmes now contends state law requires the videos be kept out of the public eye. The move comes weeks after the release of a Department of Justice report highly critical of Seattle police use-of-force policies and officers’ conduct. The city and federal authorities are currently trying to hammer out an agreement related to continuing federal oversight of the department.

The Seattle Post Intelligencer adds,

The city action appears to be one of the first times a municipality has tried to use the state privacy statute to keep police records secret.

In early January, the City of Seattle took the additional step of lodging a “Complaint for Declaratory and Injunctive Relief” (PDF) against Egan. In essence, Egan is being taken to court by the government for making a new request for public records. He claims the city’s lawsuit is “retaliation.” It is as likely to be a defensive step. In their complaint, the city is asking the court system for “guidance.” The complaint reads,

A controversy exists between the City and Egan regarding whether RCW 9.73.090(1)(c) prohibits SPD to duplicate and make in-car videos available to the public any earlier than three years from the date of the recording, which adjudication by this court would definitely resolve.

If successful, the city and the SPD will eliminate or at least limit Egan’s threat of seeking statutory damages and will hobble future threats from other sources.

Egan’s response? He has made an additional request for videos, but this time he has asked that audio portions be deleted. This is in response to an argument presented in the city’s complaint: namely, that “Washington’s Privacy Act, RCW Chapt. 9.73, generally prohibits the audio recording of private conversations without first obtaining the consent of all parties to the conversation.”

Conclusion

Battle lines are being drawn between the DOJ, which wants to instill public confidence in the police, and those police departments who wish to immunize themselves from scrutiny. Rather than opening doors to those wronged by the SPD, the DOJ’s efforts seem to have nailed doors shut. Or, at least, the SPD is pushing for that outcome.

The precedents set here are likely to be far-reaching.
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Wendy McElroy is the author of The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998). She actively manages two websites: http://www.ifeminists.com and http://www.wendymcelroy.com. For additional articles on current events by Ms. McElroy, please visit the Commentary section of our website.