To All Colorado Law Enforcement Officers,
We need your help in defeating legislation that will impact your right to privacy and increase your exposure to civil action. HB19-1119 “Peace Officer Internal Investigation Open Records” seeks to strip all Colorado Peace Officers of their expectation of non-disclosure and confidentiality by requiring that peace officer internal affairs files be released to the public.
Even with the proposed amendments to the bill, it remains a threat to the privacy and safety of Colorado’s law enforcement officers. The bill will be heard in the House Judiciary Committee on 2/19/19. If it passes through that committee it will then move to a full vote of the Colorado House of Representatives. We need all Colorado Law Enforcement officers and their family and friends to contact their representatives about their vote on this damaging bill.
Make that phone call now. Leave a voice-mail and/or send an email to your representative. Call and respectfully request a NO VOTE on HB19-1119 "Peace Officer Internal Investigation Open Records." CONTACT INFO is listed below.
Currently, there is a balancing test that provides a custodian of records and ultimately the Court the ability to balance a peace officer’s right to privacy against a compelling state interest. This bill seeks to eliminate one side of the scale such that it will always be tipped in favor of disclosure to the detriment of a peace officer’s right to privacy. Please use the link below to call your State Representative and leave a message requesting a NO VOTE on House Bill 19-1119!
Follow this link to your Representative’s contact info: http://leg.colorado.gov/legislators
If you are unsure of your district then also use this link: http://leg.colorado.gov/find-my-legislator
The following legislators will be voting on the bill tomorrow in the House Judiciary Committee:
Representative Mike Weissman, Committee Chair (District 36, Arapahoe County): (303)866-2942 firstname.lastname@example.org
Representative Leslie Herod, Vice Chair (District 8, Denver County): (303)866-2959 email@example.com
Representative Adrienne Benavidez (District 32, Adams County): (303)866-2964 firstname.lastname@example.org
Representative Rod Bockenfeld (District 56, Adams & Arapahoe Counties): (303)866-2912 email@example.com
Representative Terri Carver (District 20, El Paso County): (303)866-2191 or firstname.lastname@example.org
Representative Rochelle Galindo (District 50, Weld County): (303)866-2929 email@example.com
Representative Serena Gonzales-Gutierrez (District 4, Denver County): (303)866-2954 or firstname.lastname@example.org
Representative Hugh McKean (District 51, Larimer County): (303)866-2947 email@example.com
Representative Dylan Roberts (District 26, Eagle & Routt Counties): (303)866-2923 firstname.lastname@example.org
Representative Matt Soper (District 54, Delta & Mesa Counties): (303)866-2583 email@example.com
Representative Kerry Tipper (District 28, Jefferson County): (303)866-2939 firstname.lastname@example.org
Additional Background Information of Interest
There are already procedures in place that allow the public to obtain internal affairs files while allowing the safety interests of peace officers, their families, victims of crimes, and the community at large to be considered on a case by case basis. Under current law in Colorado:
• Colorado and federal case law require the demonstration of a compelling state interest prior to requiring the production of personal and internal affairs records.
• The Colorado Supreme Court, in Martinelli¸ acknowledged the right to privacy. The Court, in Martinelli, laid out a three-part test for courts to utilize when the right to confidentiality is invoked to prevent disclosure of personal materials or information maintained by a police department:
1. Does the party seeking to come within the protection of the right to confidentiality have a legitimate expectation that the materials or information will not be disclosed?
2. Is disclosure nonetheless required to serve a compelling state interest?
3. If so, will the necessary disclosure occur in that manner which is least intrusive with respect to the right to confidentiality? Martinelli, 612 P.2d at 1091.
• Police officers have a legitimate expectation of privacy in any materials or information that may exist within his or her personnel and internal affairs file. As part of any non-criminal departmental internal investigations, officers are required to review and sign what is known as a Garrity advisement. See Garrity v. New Jersey, 385 U.S. 493 (1967). Typically, most agencies’ Garrity Advisement provides that “[t]he statement shall be confidential and neither the statement nor any information contained therein, nor answers to questions shall be disclosed.”
• The expectation of nondisclosure is reinforced by the Colorado Open Records Act (CORA), C.R.S. § 24-72-204(2)(a)(I) and (3)(a)(II) and the Colorado Criminal Justice Records Act (CCJRA), C.R.S. § 24-72-305(5).
• Internal Affairs case files are criminal justice records, the disclosure of which is subject to the provisions of the Colorado Criminal Justice Records Act (CCJRA) sections 24-72-301, et. seq. C.R.S. and appropriate case law. Except for records of “official actions,” and records where disclosure is prohibited by statute or court order, the disclosure of criminal justice records is discretionary and can be denied where the custodian believes disclosure would be contrary to the public interest. HB19-1119 states that internal investigation records examining in-uniform or on-duty conduct of a peace officer during an alleged incident of office misconduct while interacting with a member of the public does not fall within the definition of “personnel files.”
• An officer has at least a limited expectation of nondisclosure and confidentiality related to any internal affairs records, if any, maintained by the police department. See Am. Civil Liberties Union of Colorado v. Whitman, 159 P.3d 707, 711 (Colo. App. 2006).
• A compelling state interest can be seeking proof to sustain a civil claim against an officer or the officer’s department, to defend a charge of assaulting a police officer, or to ascertain the truth. See Martinelli¸612 P.2d at 1083; Walker, 666 P.2d at 122; Lichtenstein, 660 F.2d at 436.
• There is already a balanced system in place to manage requests for internal affairs files, ensuring that there is transparency as it concerns the conduct of a peace officer is important. However, peace officers also have a privacy interest.
• Pursuant to Harris v. Denver Post, 123 P. 3d 116 (Colo. 2005), there are currently five (5) factors that are used to determine whether a record should be released or withheld.
• This bill seeks to create a blanket policy relating to the release of internal affairs records rather than allowing for a case by case review prior to releasing very sensitive information.
• This bill eliminates the privacy rights of peace officers and fails to account for the impact on the lives of peace officer and their families when unbalanced disclosure of internal records is allowed.