Public Access To Police Discipline Records May Be Restricted In Future

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Access to police disciplinary records in Maine may be limited or restricted by what is regarded as serious or minor misconduct, according to an annual report by a watchdog.

The Right To Know Advisory Committee has been discussing the implications of a bill that did not pass last April, LD 1484. In that bill, Representative Steven Bishop advocated that discipline of public employees available for the public to see should be limited to what has a financial disadvantage - such as an unpaid suspension, demotion, or termination.

That bill would also have meant Representative Bishop’s own disciplinary history as a Bucksport police officer would be secret - including a 2014 reprimand.

Needless to say, that bill was supported by police unions.

The bill and the fallout that has followed includes what the public can see about all employees on a state, county or municipal salary, not just police officers. But police unions have driven the issue.

The Committee has, for years and without resolution, been discussing how long records are kept before they are destroyed. Right now, the State Archivist allows them to be shredded based on private contracts - agreements between police unions and employee agencies known as Collective Bargaining Agreements. This can be months, before someone has a chance to request them under the Freedom of Access Act.

So, the RTKAC, which advises the legislature’s judiciary committee, has merged the two issues - how long a record is kept based on how serious misconduct is that leads to a counseling memo, reprimand, warning, suspension, or termination. However, LD1484 went further in effectively making ‘minor’ behavior even a public record at all based on what discipline was given. Three almost identical statutes for state, county, and municipal employees determine what ‘final record of discipline’ is not confidential - the crucial legal issue of whether or not a record of discipline is public or not. The bill sought to change what currently exists.

The relevant statutes only define what is a final record, not what is discipline. This has led to agencies playing whack-a-mole with requesters in trying to prevent access to records by playing games with what discipline means.

As this blog has outlined, something that was ‘minor’ includes abusive behavior to the public, sexual harassment, using a national police database for non-law enforcement purposes, abuse of sick time, and other conduct. These are issues addressed in counseling memos, warnings or reprimands based on most recent Freedom of Access Act requests.

It should be noted that actions by the Maine Criminal Justice Academy, which regulates police officers, are defined - and includes letters of guidance, as well as warnings.

In its annual report, the RTKAC said it will continue discussing a ‘tiered’ approach to how long records are kept as public records, including what is minor or serious, based on other states. It also said its focus should be more systemic rather than on language.

It also recommended to itself that it continue to discuss the issue, a rather strange concept.

One major issue is what is defined as discoverable by criminal defendants before trial, known as Brady / Giglio information. This is information used to impeach a police officer giving evidence. However, this legal concept is a post-conviction one, and what is used to impeach a misstatement can be any of the records that could be later shredded, depending on what the officer says.

The issue is expected to continue to be discussed by the judiciary committee in the coming weeks.