{"id":10588,"date":"2017-08-11T19:21:57","date_gmt":"2017-08-11T23:21:57","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=10588"},"modified":"2017-08-11T19:23:28","modified_gmt":"2017-08-11T23:23:28","slug":"gilles-bissonnette-over-reliance-on-foia-exemptions-as-a-barrier-to-police-accountability","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/gilles-bissonnette-over-reliance-on-foia-exemptions-as-a-barrier-to-police-accountability\/","title":{"rendered":"Gilles Bissonnette: Over-reliance on FOIA exemptions as a barrier to police accountability"},"content":{"rendered":"

This piece was co-authored by Gilles Bissonnette<\/a>, the Legal Director of the American Civil Liberties Union of New Hampshire<\/a>, and Michael Haley, currently a 2L at Harvard Law School, during Michael’s internship at the ACLU-NH in summer 2017. While at the ACLU of New Hampshire, Gilles has achieved significant victories in the areas of voting rights, free speech, LGBT rights, access to justice for indigent defendants, and criminal justice reform. Gilles has also taught multiple CLEs on the First Amendment. Prior to joining the ACLU, Gilles was a civil litigator in Boston at the law firms of Choate Hall & Stewart LLP, Todd & Weld LLP, and Cooley LLP. Gilles clerked for Judge Thomas M. Golden of the United States District Court for the Eastern District of Pennsylvania. Gilles received his J.D. from UCLA School of Law where he was the Chief Comments Editor of the UCLA Law Review.<\/em><\/p>\n

A police encounter heats up. A civilian is shot. The police declare the shooting justified. In the not-too-distant past, this was often the end of the story. Now, however, with the advance of technology, we frequently see a video emerge\u2014either from a police body or dashboard camera or from a bystander cell phone\u2014that contradicts the police version of events. The killings of Jordan Edwards,[1]<\/a> Sam DuBose,[2]<\/a> Walter Scott,[3]<\/a> and many, many more have followed this troubling pattern.<\/p>\n

While videos can expose wrongdoing by individual officers, problematic policies, and evidence of systemic injustice, it can be much more difficult than it should to get public access to them.[4]<\/a> When pressed to release a video under right-to-know laws, police often refuse to do so, relying on the FOIA law enforcement exemptions (and their state-law equivalents[5]<\/a>) designed to limit interference with law enforcement proceedings or to ensure a fair trial.[6]<\/a> Nowhere was this more public than the recent yearlong legal battle over the police footage depicting the shooting of Laquan McDonald in Chicago.[7]<\/a> But as evident from the judge\u2019s decision to compel release of the video in that case, reliance on the investigation and fair trial exemptions is often misplaced; open records law exemptions are not blanket protections to be invoked whenever an investigation or trial is pending.<\/p>\n

The exemption for records that could interfere with enforcement proceedings only applies in extremely limited circumstances. Merely asserting the existence of ongoing law enforcement proceedings is never sufficient to justify withholding video.[8]<\/a> Rather, to successfully invoke an \u201congoing investigation\u201d exemption, \u201cthe government must show, by more than conclusory statement, how the particular kinds of investigatory records requested would interfere with a pending enforcement proceeding.\u201d[9]<\/a> Courts across the country have uniformly rejected invocation of this exception based on conclusory, speculative assertions, without particularized supporting facts, including in the context of police videos.[10]<\/a><\/p>\n

What type of investigatory interference do courts accept as justification? In Durham v. USPS<\/em>,[11]<\/a> the government met this high burden by pointing to concerns over the safety of witnesses who were in the Witness Security Program.[12]<\/a> In that case, the concerns were both particularized and substantiated; Durham<\/em> was a murder trial where the victim was a principal witness in another murder trial.[13]<\/a> In Kansi v. DOJ<\/em>,[14]<\/a> the petitioner sought disclosure of 14,281 pages of FBI investigatory files into the murder of two CIA agents.[15]<\/a> The exemption was granted because the FBI had already disclosed hundreds of pages of documents and only withheld those for which it had specific concerns about the \u201cpotential for interference with witnesses and highly sensitive evidence.\u201d[16]<\/a> That case involved a 4 \u00bd year international terrorism investigation that ended in the suspect\u2019s arrest in Pakistan[17]<\/a>\u2014a far cry from an investigation into a local police shooting.<\/p>\n

In both these cases, the concern about publicly releasing documents was that they would alert subjects that they were being investigated, opening the door to destruction of evidence, witness intimidation, or other interference. These circumstances are not present in the vast majority of police shootings, where anyone present will already assume that an investigation will follow. Standard video editing software is capable of blurring the faces of bystanders and juveniles, or otherwise redacting their personally identifiable information, without affecting the public\u2019s ability to see and evaluate the police conduct in question.[18]<\/a> For the exceedingly rare cases where release could trigger interference and could not be remedied by redaction, the authorities must explain these circumstances and support their assertions with facts, not conclusory statements.[19]<\/a><\/p>\n

If mere vague speculation were sufficient to invoke the \u201cinterference\u201d exception, there would be a categorical exclusion for all material evidence in a criminal prosecution. Such an interpretation is unsupported by case law. \u201c[M]erely because a piece of paper has wended its way into an investigatory dossier created in anticipation of enforcement action, an agency . . . cannot automatically disdain to disclose it.\u201d[20]<\/a> To find otherwise would create a \u201cblanket exemption for police files\u201d that \u201cwould turn on its head [the] basic presumption of openness.\u201d[21]<\/a><\/p>\n

Moreover, public access in and of itself does not \u201cinterfere\u201d with law enforcement proceedings. To the contrary, in an analogous context, the United States Supreme Court has recognized for decades that public access to court proceedings ensures basic fairness and the appearance of fairness in the proceedings,[22]<\/a> fosters public confidence in the judicial process and acceptance of its results,[23]<\/a> acts as a necessary check on the judiciary,[24]<\/a> and allows the public to participate in government.[25]<\/a> Given these principles that the law enforcement process should be visible and accessible to the public, the interference exemption should not apply to most videos of police shootings.<\/p>\n

The exemption for records that could deprive a person of a right to a fair trial is similarly limited. All criminal prosecutions involve information that is unflattering, prejudicial, and sometimes inflammatory, but \u201cpre-trial publicity\u2014even pervasive, adverse publicity\u2014does not inevitably lead to an unfair trial.\u201d[26]<\/a> Applied to police videos, the negative publicity that police videos might generate does not necessarily shield them from disclosure. Hypothetical prejudice alone has never been sufficient under the First Amendment or the common law to deny the public access to records. If the law were otherwise, no negative information about a criminal defendant would ever be released. As the court explained in State v. Kozma<\/em>,[27]<\/a> in which a criminal defendant\u2019s confession was unsealed:<\/p>\n

\u201c[E]ven massive pretrial publicity about a case is not enough to show a serious and imminent threat to the administration of justice or to the denial of fair trial rights. The fact that the Statement has been determined to be inadmissible does not alter that conclusion. Even where pretrial publicity includes publication of inadmissible evidence or confessions, a defendant can still receive a fair trial.\u201d[28]<\/a><\/p>\n

Numerous other courts across the country have agreed.[29]<\/a><\/p>\n

Even if a recording is potentially prejudicial, the proper means of mitigating that prejudice is not by restricting access to recordings and documents in which the public has a compelling interest, but through voir dire. Courts across the country have repeatedly endorsed voir dire as effective at ensuring a fair and impartial jury and rejected the notion that jurors are \u201cnothing more than malleable and mindless creations of pretrial publicity.\u201d[30]<\/a> As the Fourth Circuit explained, \u201cThe reason that fair trials can coexist with media coverage is because there are ways to minimize prejudice to defendants without withholding information from public view. With respect to the potential prejudice of pretrial publicity, . . . [v]oir dire is of course the preferred safeguard against this particular threat to fair trial rights . . . [and] can serve in almost all cases as a reliable protection against juror bias however induced.\u201d[31]<\/a> The courts deal with the problem of pretrial exposure all the time when bystanders take it upon themselves to release video. There is no reason that courts could not implement similar protections if police released videos that they took or collected from bystanders, surveillance, and security cameras.<\/p>\n

This is not to suggest that police video should always be public. In fact, the majority of police body camera footage should not<\/em> be subject to public disclosure.[32]<\/a> Rather, the exception in favor of disclosure should be for cases where the public interest outweighs privacy concerns, such as when police use lethal force or when there are allegations of misconduct. Two years ago, the ACLU-NH advocated for a number of protections, now codified in NH RSA 105-D,[33]<\/a> to limit when and how police body cameras are used and how their footage is stored, used, and disclosed.<\/p>\n

Recordings of police can be a valuable tool for the public to hold law enforcement accountable, but only if laws surrounding the production, storage, and release of those recordings are respected and followed. This will not be the case so long as police departments improperly invoke the investigatory interference and fair trial exemptions.<\/p>\n

 <\/p>\n

Image Credit: Wikimedia Creative Commons<\/a><\/p>\n

\n

[1]<\/a> See<\/em> German Lopez, The Police Officer Who Killed 15-Year-Old Jordan Edwards Has Been Charged with Murder, Vox (May 5, 2017), available at<\/em> https:\/\/www.vox.com\/identities\/2017\/5\/1\/15499996\/jordan-edwards-police-shooting-texas-balch-springs.<\/p>\n

[2]<\/a> See<\/em> Jeremy Stahl, New Body Cam Videos Show Cops Coalescing Around False Narrative of Sam DuBose Killing, Slate (Jul. 30, 2015), available at<\/em> http:\/\/www.slate.com\/blogs\/the_slatest\/2015\/07\/30\/sam_dubose_murder_phillip_kidd_and_david_lindenschmidt_suspended_after_backing.html.<\/p>\n

[3]<\/a> See<\/em> David Feige, Brutal Reality: When Police Wear Body Cameras, Citizens Are Much Safer, Slate<\/em> (Apr. 10, 2015), available at<\/em> http:\/\/www.slate.com\/articles\/news_and_politics\/jurisprudence\/2015\/04\/police_body_cameras_cops_commit_less_violence_and_complaints_are_real.html.<\/p>\n

[4]<\/a> This is not to suggest that all police video should be disclosed to the public\u2014far from it. As discussed below, there are significant privacy concerns with publicly releasing most police video. This post deals exclusively with videos of alleged police misconduct or use of lethal force, where any potential privacy concerns are outweighed by the public\u2019s interest in police accountability.<\/p>\n

[5]<\/a> Here in NH, our Right-to-Know law, RSA 91-A does not include the set of exemptions found in many other states, but our Supreme Court read FOIA\u2019s section 7 exemptions into the statute in Murray v. N.H. Div. of State Police<\/em>, 154 N.H. 579, 582 (2006).<\/p>\n

[6]<\/a> Exempt from disclosure are \u201crecords or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information [(A)] could reasonably be expected to interfere with enforcement proceedings, [(B)] would deprive a person of a right to a fair trial or an impartial adjudication . . . .\u201d 46 CFR \u00a7 503.33 (a) (7).<\/p>\n

[7]<\/a> See<\/em> Sam Levine, Chicago Police Really Didn\u2019t Want to Release Video of A Cop Shooting Laquan McDonald 16 Times, Huffington Post (Nov. 11, 2017), available at<\/em> http:\/\/www.huffingtonpost.com\/entry\/chicago-laquan-mcdonald-video_us_565603e0e4b079b2818a06f6.<\/p>\n

[8]<\/a> See, e.g.<\/em>, Lemaine v. IRS<\/em>, No. 89-2914-WD, 1991 U.S. Dist. LEXIS 18651, *16 (D. Mass. Dec. 10, 1991) (\u201cEven assuming that all the withheld pages qualify as investigatory records compiled for law enforcement purposes, the agency must make clear how disclosure would interfere with enforcement proceedings<\/em>.\u201d) (emphasis added); Bernson v. Interstate Commerce Com.<\/em>, 625 F. Supp. 13, 16\u201317 (D. Mass. 1985) (\u201c[T]he mere fact that the documents are somehow related to the ongoing enforcement proceeding is not sufficient to establish interference.\u201d).<\/p>\n

[9]<\/a> Campbell v. Department of Health & Human Servs.<\/em>, 682 F.2d 256, 257 (D.D.C. 1982).<\/p>\n

[10]<\/a> See, e.g.<\/em>, Jane Does v. King Cty.<\/em>, 366 P.3d 936, 945 (Wash. Ct. App. 2015) (ordering release of security surveillance footage of a shooting and rejecting conclusory assertion of interference with witnesses or law enforcement, holding that proponents of secrecy \u201cwere obligated \u2018to come forward with specific evidence of chilled witnesses or other evidence of impeded law enforcement.\u2019\u201d (citation omitted)); Sussman v. U.S. Marshals Serv.<\/em>, 494 F.3d 1106, 1114 (D.C. Cir. 2007) (exception \u201crequire[s] specific information about the impact of the disclosures\u201d on an enforcement proceeding); id. <\/em>(\u201c[I]t is not sufficient for an agency merely to state that disclosure would\u201d interfere with a proceeding; \u201cit must rather demonstrate how disclosure\u201d would do so); Grasso v. I.R.S.<\/em>, 785 F.2d 70, 77 (3d Cir. 1986) (\u201c[T]he government must show, by more than conclusory statement, how the particular kinds of investigatory records requested would interfere with a pending enforcement proceeding.\u201d (citation omitted)); Estate of Fortunato v. I.R.S.<\/em>, No. 06-6011 (AET), 2007 WL 4838567, at *4 (D.N.J. Nov. 30, 2007) (a \u201ccategorical indication of anticipated consequences of disclosure is clearly inadequate.\u201d (quoting<\/em> King v. U.S. Dep\u2019t of Justice<\/em>, 830 F.2d 210, 223\u201324 (D.C. Cir. 1987))); North v. Walsh, 881 F.2d 1088, 1100 (D.C. Cir. 1989) (the government must prove release of records would \u201cinterfere in a palpable, particular way\u201d).<\/p>\n

[11]<\/a> No. 91-2234, 1992 WL 700246 (D.D.C. Nov. 25, 1992).<\/p>\n

[12]<\/a> Id.<\/em> at *1.<\/p>\n

[13]<\/a> Id.<\/em><\/p>\n

[14]<\/a> 11 F.Supp. 2d 42 (D.D.C. 1998).<\/p>\n

[15]<\/a> Id.<\/em> at 43.<\/p>\n

[16]<\/a> Id.<\/em> at 44.<\/p>\n

[17]<\/a> See Mir Aimal Kasi v. Commonwealth<\/em>, 256 Va. 407, 412 (1998).<\/p>\n

[18]<\/a> Windows Movie Maker (standard on Microsoft Windows PCs) and iMovie (standard on Macintosh computers) are both capable of obscuring portions of a video.<\/p>\n

[19]<\/a> See Campbell<\/em>, 682 F.2d at 257.<\/p>\n

[20]<\/a> Providence Journal Co. v. Pine<\/em>, No. C.A. 96-6274, 1998 R.I. Super. LEXIS 86, at *31 (R.I. June 24, 1998) (citation omitted).<\/p>\n

[21]<\/a> City of Fort Thomas v. Cincinnati Enquirer<\/em>, 406 S.W.3d 842, 850 (Ky. 2013). See also Penn. State Police v. Grove<\/em>, No. 1646 C.D.2014, 2015 Pa. Commw. Unpub. LEXIS 714, at *4 (Pa. Commw. Ct. Sept. 28, 2015) (ordering release of police dashcam video and holding that \u201c[t]he mere fact that a record has some connection to a criminal proceeding does not automatically exempt it under\u201d open records laws (citation omitted) (alteration in original)).<\/p>\n

[22]<\/a> Press-Enterprise Co. v. Superior Court<\/em>, 478 U.S. 1, 13 (1986) (Press-Enterprise II<\/em>).<\/p>\n

[23]<\/a> Press-Enterprise Co. v. Superior Court<\/em>, 464 U.S. 501, 507\u201308 (1984) (Press-Enterprise I<\/em>).<\/p>\n

[24]<\/a> Richmond Newspapers, Inc. v. Virginia<\/em>, 448 U.S. 555, 569 (1980).<\/p>\n

[25]<\/a> Id.<\/em> at 587\u201388 (Brennan, J., concurring).<\/p>\n

[26]<\/a> Nebraska Press Ass\u2019n v. Stuart<\/em>, 427 U.S. 539, 554 (1976).<\/p>\n

[27]<\/a> No. 92-15914 CF10E, 1994 WL 397438 (Fla. Cir. Ct. Feb. 4, 1994).<\/p>\n

[28]<\/a> Id. at *2 (citations omitted).<\/p>\n

[29]<\/a> See In re Keene Sentinel<\/em>, 136 N.H. 121 (1992) (denying a political candidate\u2019s efforts to prevent a newspaper\u2019s access to divorce records on privacy grounds because court records are presumptively accessible to the public and the candidate had not made anything more than a \u201cblanket assertion\u201d of privacy rights); People v. DeBeer<\/em>, 774 N.Y.S.2d 314, 316 (N.Y. Co. Ct. 2004) (finding that defendant was not entitled to have sealed a confession contained in document filed with court); U.S. ex rel. Callahan v. U.S. Oncology, Inc.<\/em>, No. 7:00-CV-00350, 2005 U.S. Dist. LEXIS 31848, at *8 (W.D. Va. Dec. 7, 2005) (finding that \u201cdefendants ha[d] not overcome the presumption in favor of public access\u201d by providing \u201cgeneral claims of prejudice\u201d); State v. Cianci<\/em>, 496 A.2d 139, 145 (R.I. 1985) (finding that \u201cblanket statement of potential prejudice was not sufficient to demonstrate compelling reasons for ordering the sealing of discovery documents\u201d).<\/p>\n

[30]<\/a> In re Application & Affidavit for a Search Warrant<\/em>, 923 F.2d 324, 330 (4th Cir. 1991).<\/p>\n

[31]<\/a> Id.<\/em> at 329 (internal quotation marks omitted; alterations and second ellipsis in original); see also, e.g.<\/em>, Press-Enterprise II<\/em>, 478 U.S. at 15 (\u201cThrough voir dire, cumbersome as it is in some circumstances, a court can identify those jurors whose prior knowledge of the case would disable them from rendering an impartial verdict.\u201d); United States v. Martin<\/em>, 746 F.2d 964, 973 (3d Cir. 1984) (\u201cTesting by voir dire remains a preferred and effective means of determining a juror\u2019s impartiality and assuring the accused a fair trial.\u201d (internal quotation marks omitted)); State v. Schaefer<\/em>, 599 A.2d 337, 345 (Vt. 1991) (\u201cAs a basic principle, voir dire is the normal and preferred method of combating any effects of pretrial publicity.\u201d).<\/p>\n

[32]<\/a> For the ACLU\u2019s current position on police body cameras, see<\/em> Chad Marlow & Jay Stanley, We\u2019re Updating Our Police Body Camera Recommendations for Even Better Accountability and Civil Liberties Protections, ACLU (Jan. 25, 2017), available at<\/em> https:\/\/www.aclu.org\/blog\/free-future\/were-updating-our-police-body-camera-recommendations-even-better-accountability-and.<\/p>\n

[33]<\/a> Available at<\/em> http:\/\/www.gencourt.state.nh.us\/rsa\/html\/VII\/105-D\/105-D-mrg.htm.<\/p>\n

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This piece was co-authored by Gilles Bissonnette, the Legal Director of the American Civil Liberties Union of New Hampshire, and 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