Protect and serve

First Amendment forum dominated by cop talk

Jim Ewert and Duffy Carolan say California law enforcement agencies sometimes skirt transparency laws by falsely claiming information is investigative record.

Jim Ewert and Duffy Carolan say California law enforcement agencies sometimes skirt transparency laws by falsely claiming information is investigative record.

PHOTO by ken smith

The Founding Fathers employed considerable foresight in creating the U.S. Constitution, but for all their prescience, the framers could not have imagined Hillary Clinton’s email scandal or the possibility of strapping video cameras on local constables. The document guarantees—and prescribes—citizen and press scrutiny of public servants, but the effects of modern technology on that objective are always changing.

Access to public documents in the Information Age dominated the conversation at a panel discussion on First Amendment and transparency issues held Monday (May 4) at Chico State’s Ayres Hall. The event was presented by nonprofit watchdog organization the First Amendment Coalition and the Chico Enterprise-Record and hosted by Chico State’s Department of Journalism & Public Relations. It featured a half-dozen professionals on the front-lines of free speech and access issues—four veteran journalists and two media-law experts.

With police oversight becoming a growing concern in recent years—and civil unrest in Baltimore following the killing of 25-year-old Freddie Gray at the hands of police making fresh headlines—access to law enforcement records served as a focal point for the first half of the nearly two-hour discussion.

“For journalists who work in California and for citizens that have a need for information from the police department, it is a constant frustration that it can be very, very hard to get access to most of the records that people might be interested in,” said Peter Scheer, executive director of the First Amendment Coalition and mediator of the evening’s conversation. “It’s much more so than in most other states, and much harder to get information [from local police] than the FBI.”

Panel member Jim Ewert, general counsel for the California Newspaper Publishers Association, explained that this is because California police departments can block access by claiming the release of information could harm an active investigation or endanger the parties involved. When the material is declared part of an “investigative file or investigative record,” it can remain confidential even years after a case is resolved.

Duffy Carolan, an attorney for more than 40 newspapers, explained the investigative record exemption is designed to be used by law enforcement, but that it has been increasingly utilized by other governmental bodies and officials to cover up wrongdoing.

“We’re seeing that, in the worst cases of abuse by public officials, they’re using it to withhold public records,” she said, adding that the best way for journalists to get information intentionally hidden this way is to cultivate good sources.

“I’m always amazed by how public officials, particularly in police departments, complain bitterly about reporters gaining access to confidential sources in order to write their stories,” Ewert added in agreement. “But of course they do when that’s the only way they can keep the public informed.”

Many public information proponents have advocated for police to be equipped with cameras, and Ewert explained that’s only half the battle, as departments still can declare footage is investigative record and shield it from public scrutiny.

“Patchwork policies are being created right now,” he said, “and law enforcement agencies all over the country are crafting their own regulations.”

Los Angeles police officials have declared all of their footage is investigative record, Ewert said, while the city of Rialto in San Bernardino County (“An area not traditionally known for its transparency,” he noted) supplies footage to the public without redaction, as long as it doesn’t endanger victims.

“There has to be sensitivity to privacy issues,” he said. “There has to be an effort to maintain the integrity of investigatory record, but it really comes down to the starting point … what is the purpose of having body cams in the first place?

“If it’s to provide more accountability and transparency, then the presumption has to be you get access to [the footage] for the public. If it starts from the presumption of closure, it becomes a tool for law enforcement to get their stories straight and make themselves look good.”

Other topics of conversation included whether hate speech should be protected by the First Amendment (the consensus was all speech should be protected) and if emails from a politician’s private account should be public record.

Sacramento Valley Mirror Editor Tim Crews, an old-school muckraker and info-for-all advocate noticeably absent from the panel but in attendance, ended that discussion with an interjection from the audience.

“With due respect, Peter, in Glenn County, it’s all public record,” Crews said, inspiring laughter and applause from panel and audience members.

Chico Enterprise-Record Editor David Little, Ukiah Daily Journal Editor K.C. Meadows and Associated Press San Francisco Bureau Chief John Raess were also on the panel.