Access to Governmental Records – Maryland Court of Appeals Holds That Sustained Complaints Against Police Shielded From Public Disclosure – State Police v. Dashiell, 117 A.3d 1 (Md. 2015)
Following a spate of highly publicized killings of unarmed African American men at the hands of police officers over the past year, relationships among law enforcement and minority communities have become increasingly volatile. Nowhere is this more evident than in largely urban communities like Baltimore, where anger over the death of 25-year-old Freddie Gray, who died while in police custody, led to unrest this past April. Sheryl Gay Stolberg, Baltimore Enlists National Guard and a Curfew to Fight Riots and Looting, N.Y. Times (Apr. 27, 2015), http://www.nytimes.com/2015/04/28/us/baltimore-freddie-gray.html. Six Baltimore City police officers were charged in Gray’s death and are slated to go to trial in October. Kevin Rector, Officers plead not guilty in Freddie Gray Case as Judge and Trial Date Selected, Balt. Sun (June 22, 2015), http://www.baltimoresun.com/news/maryland/freddie-gray/bs-md-ci-freddie-gray-trial-date-20150622-story.html. However, had the officers not been criminally charged in Gray’s death, it remains unclear whether their alleged misconduct would have ever been brought to public light.
In June 2015, the Maryland Court of Appeals returned a holding in the case of State Police v. Dashiell, 443 Md. 435, 117 A.3d 1 (2015), that will impede the public’s access to complaints made against police officers, even those that are ultimately found to be meritorious. By reading Maryland’s Public Information Act to exempt complaints made against police officers, as well as any discipline imposed for allegations of improper conduct that are ultimately sustained, the court may have inadvertently widened the divide between police officers and the communities they police as they’ve become increasingly skeptical of law enforcement. See Md. Code Ann., Gen. Provis. § 4-311 (West 2014); Dashiell, 443 Md. at 439, 117 A.3d at 3. The fact that the court’s decision was split along racial lines, with its two African American judges, Shirley M. Watts and Clayton Greene Jr., dissenting, suggests differing views of law enforcement among the state’s black and white communities. Ben Weathers, Anne Arundel Police: One-Third of 2014 Complaints Against Officers Were Valid, Capital Gazette (June 26, 2015), http://www.capitalgazette.com/maryland_gazette/news/ph-ac-cn-police-records-0626-20150625-story.html. With relations between the police and minority communities continuing to be a hot topic among news organizations and social commentators, it remains unclear what steps the state legislature may take to improve transparency of the state’s law enforcement agencies.
The controversy at the center of Dashiell involved a November 2009 voicemail message left by Maryland State Police Sergeant John Maiello (Sgt. Maiello) on the phone of Teleta Dashiell. Dashiell, 443 Md. at 439, 117 A.3d at 3. Sgt. Maiello had contacted Dashiell in reference to an investigation concerning the whereabouts of an alleged fugitive. Id. After asking Dashiell to call him back and erroneously believing that he had ended the call, the sergeant could be heard on the voicemail saying the word “n[*****]” in two separate instances while a second officer could be heard laughing in the background. Id. Dashiell later filed a complaint with the Maryland State Police Department (State Police) against the Sgt. Maiello. Id. at 440, 117 A.3d at 3. The State Police investigated the complaint and ultimately confirmed Dasheill’s allegations. Id. at 440, 117 A.3d at 3–4. Although the State Police informed Dashiell that they took “appropriate disciplinary action” against the officer, the agency denied the Dashiell and the American Civil Liberties Union’s requests to review the findings of the investigation. Id. at 440–41, 117 A.3d at 4–5.
Dashiell subsequently filed a lawsuit against the State Police. Id. at 442, 117 A.3d at 5. The trial court granted the State Police’s motion for summary judgment, finding that the documents Dashiell requested qualified as confidential personnel records. Id. at 445, 117 A.3d at 6–7. The Maryland Court of Special Appeals later vacated the ruling, finding that the trial court was required to determine whether each requested document was exempt from disclosure under the Maryland Public Information Act or possibly subject to disclosure as severable. Id. at 446–47, 117 A.3d at 7–8.
First enacted in 1970, the Maryland Public Information Act (the Act) embraces the premise that “[a]ll persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees.” Id. at 453, 117 A.3d at 11–12. The Act adopts a sentiment in favor of disclosure, “unless an unwarranted invasion of the privacy of a person in interest would result.” Id. at 453, 117 A.3d at 12. The Act also states that a custodian of records “shall deny inspection” of specific records, including that of “personnel records.” Md. Code Ann. Gen. Provis. § 4-311(a) (West 2014). Although the statute does not define “personnel records,” it lists the types of documents that may qualify, including “an application, performance rating or scholastic achievement information.” Id. However, the Act also provides an exception for disclosures to a “person of interest.” Id. § 4-311(b)(1).
In Dashiell, the Court of Appeals held that the documents requested by Dashiell qualified as “personnel records” under the Act and were “not capable sufficiently of redaction.” Dashiell, 443 Md. at 439, 117 A.3d at 3. The court distinguished Dashiell from the court’s ruling in Maryland Dep’t of State Police v. Maryland State Conference of NAACP Branches, 190 Md. App. 359, 988 A.2d 1075 (2010), where it affirmed a lower court’s order authorizing the release of redacted State Police records of internal investigations into racial profiling complaints. Dashiell, 443 Md. at 456, 117 A.3d at 13–14; id. at 458, 117 A.3d at 15 (“The internal affairs records in this case are specific to Sargent Maiello.”).
The court rejected Dashiell’s arguments that the case was inapposite to earlier rulings because the records at issue revealed, “proven misconduct by a state trooper.” Id. at 458, 117 A.3d at 14. The language of the Public Information Act did not distinguish between “sustained” and “unsustained” complaints. Id. at 460, 117 A.3d at 15. Likewise, the court also rejected Dashiell’s argument that because the requested records pertained to actions of a police officer engaging in “racial animus,” public policy favored their release. Id. at 458, 117 A.3d at 14. “Although, Sergeant Maiello’s voicemail message is repugnant to our sensibilities, we do not consider the substance of an employee’s actions” when determining whether the “personnel records” exemption applies. Id. at 460, 117 A.3d at 16. The court also rejected Dashiell’s contention that, even if the records qualified for exemption under the Act, she was a “person of interest” permitted to inspect such records under an exception in the law. Id. at 460–63, 117 A.3d at 16–18. While Dashiell’s complaint set the investigation of Sgt. Maielleo in motion, the court found Sgt. Maielleo to be the subject of the investigation, and thus the person of interest for purposes of the law. Id. at 463, 117 A.3d at 17–18.
In the dissenting opinion, Judge Watts took a dramatically different approach, arguing that a record of discipline based on a “sustained complaint against a law enforcement officer” is not exempt under the Act. Id. at 464, 117 A.3d at 18 (Watts, J., dissenting). The dissent distinguished Dashiell from the holding in Montgomery Cnty. Maryland. v. Shropshire, 420 Md. 362, 381, 23 A.3d 205, 216 (2011); Dashiell, 443 Md. at 466–67, 117 A.3d at 19. In Shropshire, the court found that certain “internal affairs records” qualified as personnel records under the exemption because they were “related to employee discipline” and because the “investigation clear[ed] the officers of wrongdoing.” Dashiell, 443 Md. at 446, 117 A.3d at 19 (citing Shropshire, 420 Md. at 381, 23 A.3d at 216). Thus, the court held in Shropshire, “there w[as] a significant public interest in maintaining confidentiality, both in fairness to the investigated officers and cooperating witnesses.” Id. (citing Shropshire, 420 Md. at 381, 23 A.3d at 216–17).
The dissent expressed fears that the majority had not heeded the mandate of the General Assembly, and the court’s own precedent, to “broadly construe the Pubic Information Act in favor of disclosure by narrowly contruing” the Act’s exemptions. Id. at 465, 117 A.3d at 19. Under the ruling state police agencies can conceal actions taken in response to sustained complaints against officers. Id. “This is particularly unfortunate in light of the circumstance that, today, honoring the public’s right to know how law enforcement agencies respond to misconduct—especially misconduct that arises out of contact with the public—is vital to maintaining the public’s trust in law enforcement.” Id. The dissent went on to quote Supreme Court Justice Louis D. Brandeis stating that “transparency is the best remedy.” Id.
Given minority communities’ distrust of law enforcement, Maryland’s police agencies would likely benefit from increased transparency when it comes to complaints of misconduct by officers. Maryland has already taken one step to increase transparency when it comes to police interactions with the public by passing a law, which supporters say will pave the way for equipping officers with body cameras. Erin Cox, Hogan Signs Body Camera Bill, Among 350 Others, Balt. Sun (May, 12, 2015), http://www.baltimoresun.com/news/maryland/politics/bs-md-mammoth-bill-signing-2015012-story.html. It seems possibile that state lawmakers will ultimately address the court’s ruling in Dashiell. If not, the divide between law enforcement and the communities they serve may continue to widen.
Ben Weathers is a third-year evening law student at the University of Baltimore. He has worked as a journalist for Capital Gazette Communications in Annapolis for the past five years, where he frequently reports on police and public safety issues.