The Minneapolis police officer who pressed his knee on George Floyd’s neck for nearly nine minutes until Floyd died had 18 previous complaints filed against him, according to media reports.[i] State laws and public employee labor agreements far too often prevent details about misbehaving government workers from coming to light.
Maryland is one of 23 states in which disciplinary records are kept hidden from view. In some states, all public employee personnel records are exempted from disclosure. In states such as New York, California, and Delaware, laws specifically make law enforcement officers' personnel records confidential.
In contrast to Maryland and the other non-disclosure states, twelve states allow disciplinary records to be available to the public in some situations. For many, only records of severe discipline, such as a suspension or termination, are public while the rest is confidential. States permitting public disclosure include: Alabama, Arizona, Connecticut, Florida, Georgia, Maine, Minnesota, North Dakota, Ohio, Utah, Washington, and Wisconsin.
Maryland public employee disciplinary records have been made confidential by Section 4-333 of the Maryland Public Information Act. A 2014 court case, Maryland Department of State Police v. Dashiell, affirmed that these records are exempt from disclosure, even when the requester is seeking detail about a complaint they had made and which had been found to have merit.
In November 2009, a Maryland State Police trooper phoned Teleta Dashiell because he believed she might be a witness in a case he was investigating. After leaving her his contact information, the officer mistakenly believed he had hung up the phone. He then continued in a conversation with someone else and referenced Ms. Dashiell using a racial slur that was caught on tape. Unsurprisingly Dashiell filed a complaint with the Maryland State Police, cooperated with the investigation, and several months later received a letter reporting that her claim had been validated and that appropriate action had been taken. Yet, the State Police refused to provide any further information about its investigation or about the action taken.
In response, Dashiell filed a Maryland Public Information Act (MPIA) request to obtain the State Police records on her complaint. The State Police responded by refusing to release a single document, including Dashiell's own statement. They contended that all the documents were part of a personnel record that was required to be kept strictly confidential.
After an extensive litigation, the case was taken up by the Maryland Court of Appeals. In a 5-2 ruling[ii] the Court concluded that the entirety of the State Police review of its officer’s behavior should be treated as part of his personnel record, and therefore had been properly found to be confidential. As a result, Teleta Dashiell was denied access to further information about how her validated complaint had been reviewed and resolved. Regrettably, the court’s holding does, in fact, reflect current Maryland law. As a matter of statute, the entirety of police disciplinary records can be shielded as confidential personnel records.
However, when official misconduct has been determined to have occurred, these conclusions are far more than just personnel matters. A substantial, larger public interest exists not just for victims such as Teleta Dashiell, but for the public at large to have access to this information.
Louis Brandeis famously commented that “Sunlight is the best disinfectant.” As a matter of public accountability, Maryland law should no longer shield the record of public employee misconduct determinations from public view.