NAACP can see police records 

Posted: 7:51 pm Tue, February 2, 2010
By Caryn Tamber
Daily Record Legal Affairs Writer

Documents on how the state police handled allegations of racial profiling do not constitute “personnel records” and may be released under the Maryland Public Information Act, the Court of Special Appeals held Tuesday.

The decision, made by 10 members of the court instead of the usual three-judge panel, means the NAACP will get access to 10,000 documents on how the police followed up on citizens’ complaints that they were singled out for traffic stops because of their race.

“It strongly reaffirms the right of the public to access government records that will enable citizens to ensure that the state police and other government agencies are doing the job that we want them to do,” said ACLU of Maryland Legal Director Deborah Jeon, who served on a team representing the National Association for the Advancement of Colored People.

WHAT THE COURT HELD

Case: Maryland Department of State Police v. Maryland State Conference of NAACP Branches, CSA No. 1476, Sept. Term 2008. Reported. Opinion by Salmon, J. Concurrence by Davis, J. Concurrence by Kehoe, J. Filed Feb. 2, 2010. Issue: Are the documents sought by appellee “personnel records of an individual” under the Maryland Public Information Act? Holding: No; partially vacated and partially affirmed. The trial court erred in ruling that the documents are personnel records. Counsel: Asst. A.G. David R. Moore for appellant; Hector Bladuell for appellee. RecordFax: #10-0202-00 (40 pages)

“By doing this, it really gives us an opportunity…, a mechanism to really see that they’re being investigated thoroughly and handled properly,” said Gerald Stansbury, president of the Maryland State Conference of NAACP Branches.

Assistant Attorney General David R. Moore, who represented the state on appeal, said his office is deciding whether to petition the Court of Appeals for certiorari.

“We’re reviewing the decision and determining whether its potential impact on the privacy of state employee personnel records necessitates that we ask the Court of Appeals to review it,” he said.

Compliance questioned

In 2003, the NAACP and Maryland State Police entered into a consent decree in which the police made several promises, including investigating profiling claims. In 2007, the NAACP began to suspect the police were not complying. They asked the police to produce documentation on citizen complaints and the ensuing investigations, but the police said those records were not disclosable under the PIA because they are personnel records.

The NAACP sued. Baltimore County Circuit Court Judge Timothy J. Martin ruled that the documents were personnel records but that the police should turn them over in redacted form, removing the names of the troopers, a compromise to which the NAACP agreed.

Rather than disclose the records, the state appealed, and the NAACP filed a cross-appeal arguing that the trial court should not even have addressed the issue of whether the documents were personnel records.

A three-judge panel of the Court of Special Appeals initially heard arguments in the case but did not decide it.

Subsequently, the full court reheard the case, an unusual step and one the court did not explain to the parties or in its decision Tuesday.

All 10 judges agreed that the records should be disclosed, but disagreed as to why.

The court produced three opinions: a majority opinion, a concurrence by three judges who explicitly joined in the majority opinion, and a second concurrence joined by two judges.    (Three judges of the 13-member court — Judges Ellen L. Hollander, Alexander Wright and Kathleen G. Graeff — did not participate in the opinion.)

Exception did not apply

The majority held that the personnel records exception did not apply to the documents sought by the NAACP.

“Racial profiling complaints against Maryland State Troopers do not involve private matters concerning intimate details of the trooper’s private life,” Judge James P. Salmon wrote for the majority. “Instead, such complaints involve events occurring while the trooper is on duty and engaged in public service. As such, the files at issue concern public actions by agents of the State concerning affairs of government, which are exactly the types of material the Act was designed to allow the public to see.”

Nathan Siegel, a media lawyer with Levine, Sullivan, Koch & Schulz LLP in Washington, D.C., said the decision is a blow to police agencies that overuse the PIA’s personnel records exception.

“The police departments have been trying to use the personnel records exception as a way of avoiding disclosure of almost anything that has to do with an officer,” said Siegel, an adjunct professor at the University of Maryland School of Law. “This decision is saying now … there’s a difference between records that really relate to the officer’s performance of his or her public duties and records that are related to their private performance of their employment duties.”

The first concurrence, written by Judge Arrie W. Davis and joined by Judges Deborah S. Eyler and Patrick L. Woodward, agreed with the majority’s reasoning but also emphasized that the records sought were the only way to measure compliance with the underlying consent decree.

The second concurrence, written by Judge Christopher B. Kehoe and joined by Judge Robert A. Zarnoch, opined that the documents are indeed personnel records, but were still subject to disclosure.

“Whether a state trooper uses race as a factor in determining whether to initiate a traffic stop bears ineluctably upon that officer’s job performance,” Kehoe wrote. “If the [police] were to conclude that a trooper was guilty of racial profiling, discipline would surely follow.”

However, the documents were still subject to disclosure because protected portions of government records may be severed from non-protected portions, he wrote. Redacting trooper-specific information would constitute severing.