Police misconduct records and more to be off-limits under two new bills

Despite the obligatory squawks from lawmakers about the need for transparency in government, few of their actions are quite as transparent as their efforts to shield internal bureaucratic processes from outside scrutiny. For a demonstration of this principle in action, look no further than two bills currently creeping through the state legislature that would close investigative records previously accessible to the lowly public -- including records dealing with police misconduct and the disciplinary process.

House Bill 1062, sponsored by Colorado Springs state representative Mark Barker, is billed as offering "minimum employment protections for Colorado peace officers," including the right to engage in political activities when not in duty or on uniform. Fine and dandy, but as this account in the Denver Post notes, one provision of the bill would make all materials used in any disciplinary hearing confidential -- a red flag to the Colorado Press Association, since such evidence of police misconduct now often finds its way to other agencies and thus to the public.

Another measure, House Bill 1036, sponsored by Rep. Jim Kerr of Littleton, seeks to "clarify" what investigative records can be withheld from the public under Colorado open records laws. Actually, it extends the exclusion invoked by law enforcement with regard to ongoing criminal investigations and seeks to apply it to "civil and administrative" investigations as well. This all comes about because a court ordered the release of records dealing with appraisers under investigation for allegedly bogus work, and Colorado Attorney General John Suthers would like to see such probes become as closely guarded as homicide investigations.

Both measures would greatly weaken press and watchdog groups' ability to examine what's really going on in law enforcement and the justice system -- an ability that's already been greatly eroded in this state in recent years. The ACLU has had to go to court close to a dozen times to get the Denver Police Department to cough up citizen complaint records racked up by its most unruly cops; it's won the battle repeatedly, but that could change with new legislation.

During a recent visit to the Westword office, new Denver Manager of Safety Alex Martinez told staffers and editors that he favored keeping disciplinary records under seal with the rest of an officer's personnel file, releasing only a summary of results when a proceeding led to substantive action, such as termination. This, he explained, was necessary to preserve the integrity of the internal process.

That's certainly a defensible position. But it would sound a little less ominous if Martinez had not been for years a member of the gang in robes at the Colorado Supreme Court that has effectively thwarted public access to many Colorado court records. Thanks to the directives of the Supremes, such records must be reviewed by clerks, who are charged with determining if a file contains personal or financial data that should be expunged before releasing it -- and who can charge a fee for this time-consuming service. Divorce cases, sexual assault cases, and many other types of cases are now close to being off-limits in some jurisdiction, even though there doesn't seem to be any real evidence that people were using the information in court files for identity theft or some other criminal purpose.

But, hey, it's all done to protect the public, right? In 2008, Jean Stewart, then the judge of Denver's probate court, issued a judicial fiat sealing all files of conservatorships and guardianships involving "protected persons" -- because, well, those people need to be protected from the public. Yet given the long-running controversies in Stewart's court over plundered estates, conservators who waste assets, and exploited "protected persons" -- see this grim report on the problem statewide by the Office of the State Auditor -- who truly benefits from sealing these records? Stewart retired last year, but the order remains in place.

The same goes for such sticky issues as prison health care, violence and sex harassment in state agencies, and social service investigations. It's a privacy issue. It's a personnel issue. It's none of the public's business.

Government keeps expanding, and matters that are the public's business keep shrinking. There's something transparently wrong about that.

More from our Follow That Story archive: "Jason Graber deal won't get Denver Police out of releasing excessive-force files, says David Lane."

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Alan Prendergast has been writing for Westword for over thirty years. He teaches journalism at Colorado College; his stories about the justice system, historic crimes, high-security prisons and death by misadventure have won numerous awards and appeared in a wide range of magazines and anthologies.
Contact: Alan Prendergast

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