Crime Scenes: ACLU targets police 'personnel records'

A win in court could force open police disciplinary files

November 03, 2010|By Peter Hermann, The Baltimore Sun

Two watchdog groups — one promoting civil liberties, the other civil rights — want to inspect Maryland State Police disciplinary records to make sure troopers are complying with a consent decree to investigate claims of racial profiling.

And Teleta Dashiell wants to know how a state trooper was punished for leaving a racially offensive message on her voice mail — something beyond the official response: "appropriate disciplinary action was taken … and documented in his personnel file."

The Maryland Court of Appeals is scheduled to hear arguments in the racial profiling case Friday, and the American Civil Liberties Union filed suit last week against the state police in Baltimore County Circuit Court on behalf of Dashiell.

Both cases challenge the oft-used way local government agencies deny the disclosure of certain information: by saying that whatever is being sought is a "personnel record," and thus can't be disclosed. A victory by the two groups could open up hundreds, if not thousands, of new records to public scrutiny.

Both sides have filed hundreds of pages of legal briefs before the state's highest court in advance of Friday's hearing.

Boiling it all down, the ACLU and the NAACP argue that the state's interpretation of what is a "personnel record" is overly broad and should not include records pertaining to interactions that public employees have with members of the public.

The state argues that the groups are asking the courts to redefine the General Assembly's "common sense" definition of personnel records as "documents that directly pertain to employment and an employee's ability to perform a job."

That, the Maryland attorney general's office argues, includes "records that relate to the discipline, promotion, dismissal, status, job performance or achievement of an existing or former employee."

The two suits target police only, the ACLU says, because most complaints filed by citizens against government officials involve the cops. "People file complaints against the police, which they don't typically do against people sitting in an office," said Deborah A. Jeon, the legal director of the Maryland ACLU chapter.

The case being argued before the Maryland Court of Appeals centers on whether state police must turn over more than 10,000 pages of documents regarding how the agency handled complaints of racial profiling in traffic stops.

The NAACP and ACLU sued state police in 1998 and settled in 2003 with a consent decree that required police agencies around the state to collect data on traffic stops and provide results of investigations into complaints that black drivers were disproportionally pulled over.

State police have told the NAACP that of 94 complaints of racial profiling in the past five years, none was upheld. But the agency has refused to release the files or any other data, citing personnel reasons.

The Circuit Court tried to find a compromise by ruling that state police should turn over the records but could redact the names of the troopers involved. But the court still labeled the records as personnel.

Jeon said the phrase "personnel records" should be reserved for an intra-office dispute, or a mark on a record that does not impact the public. It should not be used, Jeon said, to shield a public employee from public scrutiny for performing a public act.

"We don't think those are personnel records," Jeon said. "It is a citizen's right to understand what government is doing on the job."

The Court of Special Appeals ruled that "racial profiling complaints against Maryland State Troopers do not involve private matters concerning intimate details of the trooper's private life. … The files at issue concern public actions by agents of the state concerning affairs of government, which are exactly the types of material the [Maryland Public Information Act] was designed to allow the public to see."

In its legal briefs, the state says that the lower court has carved out a "public service" exception to the Maryland Public Information Act that is not supported by statute nor precedent. The attorney general's office wrote that the ruling "cannot be squared with the court's own 'common sense' interpretation of 'personnel record' to include 'documents that directly pertain to employment and an employee's ability to perform a job.' "

The lawsuit filed by the ACLU last week seeks to learn how the state police handled a complaint made by Dashiell about a voice-mail message from Sgt. John Maiello.

In November last year, police had questioned Dashiell, who lives on the Eastern Shore, about a fugitive. Maiello called her and left a message on her voice mail, and then, according to the ACLU suit, made a racially insensitive and offensive comment, apparently believing he had terminated the call.

Dashiell filed a formal complaint, and according to the ACLU lawsuit, was told it had been sustained. But police refused to tell her anything more, including the punishment for the trooper, if any. Dashiell received a letter from state police saying only that "appropriate disciplinary action was taken" in the case.

Maryland State Police spokesman Gregory M. Shipley said, "The victim's complaint is a serious issue and one that this department took very seriously. It was thoroughly investigated and appropriate action was taken."

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Both cases could change the way authorities describe and handle "personnel records."

peter.hermann@baltsun.com

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