Police Privacy & Public Right to Know: Use of Force Document Disclosure
By: Marci Manley, KARK 4 News
Updated: December 11, 2011
On October 29, 2011, a gritty scene played out on a Little Rock sidewalk. Off-duty Little Rock Police Officer David Hudson was working as security at Fernau Restaurant. In a YouTube video, he's seen hitting Chris Erwin repeatedly after Erwin was asked to leave the establishment.
"We see this brutal beating on this video tape. We know the officer's got a story about it. Are you kidding me? We don't get to know what his story is?" said Attorney Keith Hall.
Erwin is currently facing several charges including resisting arrest and trespassing. Hudson is currently the subject of an internal investigation. He remains actively working on the police force but has been barred from taking any off-duty work.
Per Little Rock Police Department policy, officers are required to file a report with the department outlining any use of force, giving the officer's account of events that transpired, which is addressed to his supervising officers.
Hall believes the public has a right to read them, like an arrest report. Hall submitted a Freedom of Information request for use of force reports written by Hudson. Police initially denied the request, and the issue went on to Judge Wendell Griffen's courtroom.
"Is there a difference? No. It's a policeman's version of the fact. Exactly the same thing. End of story," Hall said.
In court documents, Police Chief Stuart Thomas contends the report is a personnel record, exempt under the Arkansas FOIA. The law does exempt some personnel records to protect against unwarranted invasions of privacy and if the documents are currently being used as the basis for a suspension or termination proceeding.
"That's ridiculous to assert some sort of privacy interest in his report about something that happened on the streets of Little Rock," Hall objected.
In the end, Judge Wendell Griffen ordered police to release four report of use of force records filed by Hudson in the past five years, immediately. In his motion, he noted that breach of privacy was not a concern in this case and that Thomas had confirmed the report was not being used in a suspension proceeding.
According to the department, the policy has always been to never release those records, as they pertain to performance review and evaluation.
"The records in request here were required to be created by Little Rock Police Department policy for the specific purpose of evaluating a police officer's use of force and would not have been created unless the officer used force in the performance of his duties," City Attorney Tom Carpenter included in a court motion, representing Thomas.
"We have a right to see how the police are running their business," Hall said. "Otherwise, they are solely the only ones who have access to those records. Nobody else gets to take a look at any document that they construe under the protection of the employee document umbrella."
Carpenter, in representing the Police Department and Chief Stuart Thomas, has appealed the decision to the Arkansas Supreme Court. The court issued a stay in the case, essentially halting Griffen's order to release the reports.
"A valid reason to grant the stay is that the rights of the employee have such records protected from disclosure pursuant to FOIA is lost if the records are disclosed prior to appellate review when it is, as here, sought," Carpenter included the motion for a stay from the Supreme Court. "The harm to the employee is irreparable because once the documents are released, they cannot be unreleased and are part of the public domain."
Hall believes the department is fencing off its documents to keep the public from seeing how the Police Department polices itself.
"They get to solely determine whether or not their police officers are properly performing their duties," he said. "As I see it, we as citizens are paying that force to serve and protect and we ought to be given access to see what they are doing in suspension, termination and other employee related incidents. We have a right to see how the police are running their business. And they don't want us to see it. That's all it boils down to."
In court documents, police make the argument they are simply following the restrictions outlined in the FOIA law by not releasing documents they believe are exempt from disclosure.
The Surpreme Court's decision will, in the end, determine if past policy prevails or if new case law determines the release of such records in the future.
"We see this brutal beating on this video tape. We know the officer's got a story about it. Are you kidding me? We don't get to know what his story is?" said Attorney Keith Hall.
Erwin is currently facing several charges including resisting arrest and trespassing. Hudson is currently the subject of an internal investigation. He remains actively working on the police force but has been barred from taking any off-duty work.
Per Little Rock Police Department policy, officers are required to file a report with the department outlining any use of force, giving the officer's account of events that transpired, which is addressed to his supervising officers.
Hall believes the public has a right to read them, like an arrest report. Hall submitted a Freedom of Information request for use of force reports written by Hudson. Police initially denied the request, and the issue went on to Judge Wendell Griffen's courtroom.
"Is there a difference? No. It's a policeman's version of the fact. Exactly the same thing. End of story," Hall said.
In court documents, Police Chief Stuart Thomas contends the report is a personnel record, exempt under the Arkansas FOIA. The law does exempt some personnel records to protect against unwarranted invasions of privacy and if the documents are currently being used as the basis for a suspension or termination proceeding.
"That's ridiculous to assert some sort of privacy interest in his report about something that happened on the streets of Little Rock," Hall objected.
In the end, Judge Wendell Griffen ordered police to release four report of use of force records filed by Hudson in the past five years, immediately. In his motion, he noted that breach of privacy was not a concern in this case and that Thomas had confirmed the report was not being used in a suspension proceeding.
According to the department, the policy has always been to never release those records, as they pertain to performance review and evaluation.
"The records in request here were required to be created by Little Rock Police Department policy for the specific purpose of evaluating a police officer's use of force and would not have been created unless the officer used force in the performance of his duties," City Attorney Tom Carpenter included in a court motion, representing Thomas.
"We have a right to see how the police are running their business," Hall said. "Otherwise, they are solely the only ones who have access to those records. Nobody else gets to take a look at any document that they construe under the protection of the employee document umbrella."
Carpenter, in representing the Police Department and Chief Stuart Thomas, has appealed the decision to the Arkansas Supreme Court. The court issued a stay in the case, essentially halting Griffen's order to release the reports.
"A valid reason to grant the stay is that the rights of the employee have such records protected from disclosure pursuant to FOIA is lost if the records are disclosed prior to appellate review when it is, as here, sought," Carpenter included the motion for a stay from the Supreme Court. "The harm to the employee is irreparable because once the documents are released, they cannot be unreleased and are part of the public domain."
Hall believes the department is fencing off its documents to keep the public from seeing how the Police Department polices itself.
"They get to solely determine whether or not their police officers are properly performing their duties," he said. "As I see it, we as citizens are paying that force to serve and protect and we ought to be given access to see what they are doing in suspension, termination and other employee related incidents. We have a right to see how the police are running their business. And they don't want us to see it. That's all it boils down to."
In court documents, police make the argument they are simply following the restrictions outlined in the FOIA law by not releasing documents they believe are exempt from disclosure.
The Surpreme Court's decision will, in the end, determine if past policy prevails or if new case law determines the release of such records in the future.
