Citizens who care about government accountability, transparency, and access to public records should be very concerned about a newly-introduced bill, HB 2490, entitled "Relating to protection of personal information about commissioned peace officers and their families", which might more appropriately be named "The Secret Police Act of 2008". You can see information on the bill at http://apps.leg.wa.gov/billinfo/summary.aspx?bill=2490.
The bill would add the following exemption to the state Public Records Act (PRA), RCW 42.56, in section 42.56.230:
(3) Personal information about a commissioned peace officer, the officer's family, or both; or information that could easily lead to the discovery of the personal information; and that is not necessary for the effective operation of a law enforcement agency.
(a) Such information includes, but is not limited to, residential addresses, residential telephone numbers, property and tax records, and commissioned peace officers' birth dates other than year of birth, as otherwise provided in this section.
(b) The full name, year of birth, and photograph of individual commissioned peace officers shall be disclosed pursuant to specific requests for information about the individual officer, but the officer, the officer's immediate supervisor, or both, must be notified of the request and provided the name and city or county of the requester before it may be disseminated;
Based on the testimony of law enforcement officers at the Sunshine Committee meeting in Ellensburg last October, open government advocates have anticipated the filing of this bill. And as expected, it has many problems.
From a technical perspective, if something like this is done at all, it should be in 42.56.250, not 42.56.230. Most of what is listed here is already exempt from disclosure under 42.56.250(3), and does not need to be re-exempted in another section. The bill should specify exactly what additional special exemptions peace officers are asking for above and beyond what other government employees already receive, and not be duplicative. But that's technical trivia, and much more serious problems exist with the bill.
The language of the bill is not narrowly written; in fact, it is poorly written. What exactly does "not necessary for the effective operation of a law enforcement agency" mean, and what does it refer to? Where is "commissioned peace officer" defined, and who is included in it? That term appears in only two chapters of the RCW - 10.93 and 43.101. Does one of the definitions in RCW 10.93.020 apply? If so, it should be referenced.
The language says that "property and tax records" of commissioned peace officers would be exempt from disclosure. Does this mean just from disclosure under PRA requests, or from all disclosure? A PRA exemption does not make the records "confidential"; it just means that the agency can, if it so chooses, decline to release them in a PRA request. For the bill sponsors to actually achieve what they appear to want, they will need much more than a PRA exemption -- they will need to make the records confidential and prohibit them from disclosure, such as by prohibiting them from being included in property record databases that are posted widely on the internet, and prevent them from being obtained through existing, non-PRA mechanisms such as walking into a county recorder's office and looking them up on an image database. If "property records" of peace officers are to become confidential records, this would make it impossible for title companies to verify ownership of property owned by peace officers. It would make it impossible for mortgage companies, or real estate agents, to access these records. Does this mean that all peace officers want to no longer be able to borrow money against property they own, or sell their property to others? That would be the effect of making these records inaccessible to lenders, title companies, and real estate agents.
Exactly how are county clerks, assessors, treasurers, and others -- the ones who hold these records -- supposed to know which of their records pertain to commissioned peace officers, and which do not, especially since details about the peace officers are confidential and cannot be accessed by these officials, either? Are the property records to be available, but the name of the owner simply redacted, or is the entire record inaccessible? If a peace officer owned a piece of property at some time in the past, is information about that property forever confidential because the peace officer appears in the ownership chain? Does this protection continue to apply after the peace officer is retired, no longer commissioned, or moved out of state, or only while they are an active commissioned officer? Does it apply to any property they own or have ever owned, or just to their current primary personal residence? If there is a peace officer named "John Smith", is a county recorder supposed to make all property records for all persons named "John Smith" confidential, since it would be impossible to know which "John Smith" property owner is the peace officer and which is not? There are so many issues with implementation of this provision that it is almost impossible to imagine them all.
Does this mean that voter registration records of peace officers would become confidential? How is the secretary of state supposed to flag all of the voter registration records of peace officers so that they can be excluded from the voter registration database? Does this mean that peace officers would no longer be able to run for public office, because it becomes impossible for county auditors or the secretary of state to verify that they are registered voters -- a requirement to file for office? Do all peace officers effectively have to become participants in the Secretary of State's address confidentiality program, like domestic violence victims?
The bill says that it protects personal information about the families of commissioned officers as well, but it doesn't define "family". The exemption in RCW 42.56.250(3) applies only to "dependents", which is pretty narrowly defined, but "family" is exceedingly broad. What definition of "family" is to be used? Does it mean anyone related to the officer -- spouse and children, yes, but also parents? Grandparents? Grandchildren? Siblings? Cousins? Nieces and nephews? Same-sex domestic partners? Others living in the same household who are not related? How are all of the government agencies, at all levels, who hold records that mention all of these people, to know which records are exempt and which are not? Is there going to be a database maintained by the state listing all law enforcement officers and all of their "family members", and a requirement created that this database must be consulted by every government agency prior to release of any record, to determine whether the record is exempt from disclosure based on it containing information about someone named in the database? Who will maintain the database, and how much will it cost to do so? Wouldn't the very existence of this database, and its broad accessibility to all government employees at all levels, be itself a threat to the security of law enforcement officers and their families? Do law enforcement officers really trust that every government employee who would need access to this database in order to know which records can be released and which cannot, will keep the database confidential and not release it, en masse, to the very criminals that the officers wish to prevent receiving it?
It has been established that date of birth is not a very useful tool for identity theft. Why do peace officers want their dates of birth kept confidential, when all other citizens have theirs disclosed? Are peace officers now a special class of citizen, separate and above other citizens? Who else is going to want this same special treatment? Judges? Court employees? Corrections officers? Parole officers? Prosecutors? Tax collectors? IRS agents? Federal law enforcement officers? Other types of regulators? Social workers? Politicians? The repo man? There are many, many government employees and non-government employees who do things every day that cause somebody, someplace to be mad at them. Are they all going to want all of their records to be confidential in this same way?
The proposed subsection (3)(b) would require that officers and their supervisors be notified of requests for their personal information and be given the name and "city or county" of the requester before the information can be given out. This opens the door to discrimination on the basis of the requester, contrary to 42.56.080, which says "Agencies shall not distinguish among persons requesting records, and such persons shall not be required to provide information as to the purpose for the request except to establish whether inspection and copying would violate RCW 42.56.070(9) or other statute which exempts or prohibits disclosure of specific information or records to certain persons". It also seems to require that requesters will now have to provide verifiable identification prior to a request being fulfilled, which has never been the case in the past -- without this requirement, requesters would be able to easily circumvent the intent of this provisions by making requests under an alias, giving a mail drop or post office box as a return address. Will it then become a crime to give an assumed name or false address when inspecting these records or requesting copies? Does the officer or supervisor have to acknowledge receipt of the identity and location of the requester prior to the records being released? If so, doesn't this create a way for the officer or supervisor to block release, simply by failing to acknowledge the request? The subsection does not say if the officer would be able to block the request based on the identity of the requester; is that the intent? How then is this different from the existing notification and challenge mechanism in 42.56.540? Is this notification to be considered probable cause to assume that the requester is intending to commit some sort of crime against the officer, and used by the officer or the department to start an investigation of the requester or otherwise intimidate them?
Peace officers are reasonably concerned that they or their families may be targeted by criminals for retribution, by harassment, stalking, violence, identity theft, financial fraud, or otherwise. Officers and their agencies don't want criminals to compile databases of information on officers, including their photographs, that could be used to identify those who are operating undercover. But the provisions of HB 2490 are not the way to deal with those threats. It would be almost impossible to implement without eliminating broad swaths of records from public access. It would be incredibly expensive and complex to implement. It would have side effects that we cannot begin to imagine. It would open the door to many other classes of public employees demanding similar treatment.
The state legislature should reject HB 2490. Those who care about access to public records should contact their legislators and insist that they vote No on this bill.
Toby Nixon is president of the Washington Coalition for Open Government.
Posted by Toby_Nixon at January 16, 2008 12:57 PM | Email ThisThis is America--we must resist the trend towards dual-classism.
Posted by: russell garrard on January 17, 2008 12:26 AMIf a government database can be used to harrass someone, it's a problem whether that person is in law enforcement or not. Fix it for everyone. We have too many special categories of people these days already.
Why is this important? Well, what decent, intelligent, rational person would find it acceptable for a police agency to hand over the full names, dates of birth and photographs of every single commissioned employee to, say, the Aryan Brotherhood? The Hell's Angels? A terror group?
Not me.
This bill doesn't do half of the things you claim. And most of the things you point out as being problematic either miss the mark completely or are already exempted from disclosure. Clearly the inclusion of many points (like addresses, etc.) are a redunancy. You can't get that information about any other employee either!
And what on earth are you talking about with regard to the notification of the officer or his supervisor? This has no impact on the disclosure. There's not a single word in that bill that gives anyone the power to stop or delay the disclosure. Quite clearly this is a courtesy. It simply gives the officer a heads up that someone is requesting information about him. This COULD be useful if that "someone" was a person who'd made threats, etc.
You don't like this bill? That's your prerogative. But, you yourself acknowledge that our officers need added protection. What protection would you give them? Are you okay with handing out general rosters of our peace officers to criminals? I'm not.
If you actually want to read the TRUTH about this bill, you should read www.whowillprotecttheprotectors.com
and then maybe talk to the people who wrote it!
Posted by: Gwen on January 20, 2008 12:11 AMYou seem to think that HB 2490 says that it exempts only (a) dates of birth of peace officers, and (b) general rosters of peace officers. It doesn't say that at all. It exempts from disclosure all "personal information" (a very broad term) about peace officers AND their families (without defining family). Yes, it says birth dates cannot be released, but it explicitly says that "such information includes, BUT IS NOT LIMITED TO", a list of things, including "property and tax records".
The effect of the language that you have written is that EVERY RECORD in the the hands of EVERY STATE AND LOCAL AGENCY that contains ANY personal information about ANY peace officers and ANY of their family members is exempt from disclosure.
If you wanted to write a bill that says rosters of peace officers cannot be released by law enforcement agencies, then write that bill. You have not written that bill. You have written a bill that will be outrageously expensive to implement because of its breadth.
And just what makes you think that a person who has made threats against an officer would give their true name and address when requesting personal information about that officer, so that the information can be given to the officer and their supervisor? The only way you'll be able to enforce that is to require every person requesting such information to prove their identity. That has never been a requirement for public records requests in the past. Again, you completely misunderstand the impact of the language you have actually written.
The description of the legislation you have on your web site is false. The bill would plainly do far more than what you say it will do. Perhaps that poor bill drafting was unintentional on your part, but it is nevertheless true. I suggest that you read the bill and correct your web site so that it matches what the bill actually says, or rewrite the bill so that it does only what your web site says. As it stands, you are lying to citizens about the impact of the legislation, and that completely discredits your cause.
You know better than I do that bills go through a revision period (clearly - it started the moment my request left my computer!). If, as you claim, this bill is overbroad and will have such sweeping impacts it can and should be revised. But to dub this the "Secret Police?" C'mon. It makes for a good sound byte that will attract the attention of the media and the anti-police crowd, but it is SO far from reality!
Secret Police? There is not a word in ANY version of this bill that asks to exempt internal investigation reports; complaints against officer; arrests made of officers; etc. If this bill were truly about that oft heard about "Blue Wall of Silence" surely we'd all be focusing on concealing this inflammatory information.
That's not what this is about. Not even close. We just don't want general rosters containing the names, dates of birth, and photographs of EVERY commissioned officer in the hands of criminals. For crying out loud, we're not even trying to keep their names, years of birth and photographs from being disseminated! Under subsection b) of the CURRENT draft, you could submit a request and get this information about ANY officer . . . just not the entire department out of a single request.
The website says just exactly what it is that I, and our supporters, need and want this bill and the legislature to accomplish. How dare you call ME a liar when it is YOU who are slinging around allegations of "Secret Police" to generate some buzz and public fear and when it is YOU who has such a tremendous amount of legislative experience to the degree that you know full well that 1) no private citizen is going to draft a bill and have that bill sponsored verbatim by anyone and to imply that I was able to accomplish this is either giving me WAY too much credit OR being deliberately disingenuous; and 2) virtually no bill is going to be passed in its original form as the hearing process is designed to identify and address the problems you have described.
Toby, you seem to acknowledge that LEOs need some type of protection. You have the experience and the expertise. You don't like this version? You see problems with this version? Then, please, fix them. (No sarcasm. An earnest request for help.) Come up with a good faith revision that will keep general rosters from being disseminated to criminals. You've seen the website. You have an idea of what is needed/wanted. Can you build the better mousetrap? If so, I'll throw my support behind you and your efforts 100% - until then, the current version of HB 2490 is my only option.
Posted by: gwen on January 20, 2008 08:22 PM