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5 tips for law enforcement agencies responding to a Freedom of Information Act request

Responding to law enforcement Freedom of Information Act requests requires carefully balancing transparency against privacy

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Don’t wait for an officer-involved shooting or other critical event to determine your agency’s policy and process for complying with records requests.

It’s been a week since one of your officers shot a suspect during a burglary attempt. Although the officer’s actions were reasonable considering the circumstances, the suspect turned out to be an unarmed homeless man, stealing food from the local 7-11. Not surprisingly, the case garnered a lot of attention. Now, with the media interviews complete and the investigation underway, you take a deep breath. Maybe things can start to get back to normal around here.

But just then your assistant knocks on the door. You’ve been served with a Freedom of Information Act request. A local newspaper wants the officer’s training records, proof of her firearms qualifications, and information on any other shootings she’s been involved in. The request also asks for your agency’s Use of Force Policy. Here we go again.

As police reform continues to dominate national headlines, law enforcement agencies are increasingly under the microscope. In years past, law enforcement leaders could rely on relationships built with local reporters, elected officials and community groups to explain what happened at a particular incident and why. Today, incidents can quickly go viral, bringing attention from national advocacy groups, concerned citizens and reporters who cover the national police beat. And sometimes, this attention comes in the form of a Freedom of Information Act request (public records laws carry different names depending on state laws, such as Public Records Law, Open Records Law, Right-to-Know Law, and Sunshine Law).

Responding to Freedom of Information Act requests can be stressful and confusing. What information must you provide? What can and should you redact? What will be the impact of releasing the information, and who should be aware of the release? Often, complying with such requests involves balancing the need for transparency against the potential negative impact of release.

Don’t wait for an officer-involved shooting or other critical event to determine your agency’s policy and process for complying with records requests. Following are five tips to consider now, so you have the needed guidelines to follow in the heat of a critical incident.

1. Commit to Transparency

A request for public records can seem accusatory – the implication is that your agency won’t release the information voluntarily, so the media organization or member of the public is using the law to compel you to comply. But that’s hardly the complete picture. Law enforcement agencies gather immense amounts of information and records in the course of regular business. It’s your responsibility as a law enforcement leader to ensure these records are secure. Going through the FOIA process is often the best way to ensure records don’t fall into the wrong hands and are being used responsibly.

One way to combat the negative feelings associated with public records requests is to commit to transparency in your policy. Simply stating that your agency is committed to complying with the law sets a tone for you, your staff and those making requests. Rather than setting up the situation as “us vs. them,” it underscores that you’re ready and willing to comply.

Many agencies take things a step further and openly publish their policies on the agency’s website. In a few states, laws mandate publication of certain policies; California requires all law enforcement agencies to publish their policies and training material. Lexipol customers can easily download a PDF of their policies and post the document on the agency website. Tip: If you post policies online, remember to update the public-facing document any time you make a change to the policy, and make sure the way you’re presenting your policies online is truly transparent. Burying policy six pages deep in your site may check a box, but it hardly demonstrates a true commitment to transparency.

2. Designate a Records Officer

A key step in being prepared to promptly respond to Freedom of Information Act requests is to designate who in your agency will respond to the requests. In small agencies, this will often be the chief, but in medium or larger agencies, it may be an assistant chief, lieutenant or deputy sheriff.

The open records officer is responsible for the retention, release and destruction of records. They should be familiar with the records retention laws of your state and maintain documentation as to which records need to be retained, for how long and in what format. Equally important to retention is the timely destruction of records after the retention period has passed. Timely destruction of records achieves two purposes: First, it reduces costs associated with archiving of records, which can be especially expensive when it comes to video records. Second, if the record exists, it can be subject to an open records request even if the retention period has passed. So if you’re not required to keep it, it’s best to lawfully destroy it.

3. Outline the Process

Defining the process by which your agency will respond to a FOIA request will also help with prompt, transparent compliance. Your process should cover:

  • Documenting when you received the request

  • Documenting when you replied to it and how
  • What to do if you need more time to comply with the request than the law provides
  • What to do if you don’t have the record requested, or if it’s in a different format than the request
  • Lawful reasons for denying a request and what information you provide to the requestor when denying the request, including a possible appeals procedure
  • What fees, if any, are charged for records duplication and release

4. Protect Sensitive Information

Equally important to transparency is a law enforcement agency’s responsibility to protect sensitive information. We may think of records as boring documents, but they often contain information that can be misused. The specific types of documents subject to release restrictions will be detailed in your state’s open records law, but some examples include:

  • Personal identifying information (Social Security numbers, driver’s license numbers, addresses, medical information, etc.)

  • Home addresses of officers
  • Information that could jeopardize the safety of a victim or witness
  • DNA records
  • Officer discipline, promotion and grievance records

Sometimes a document will include information subject to release but also information subject to withholding. In such cases, it will be appropriate to redact certain information before releasing the document. Note: Make a copy of the document you created with redactions before releasing it. This will provide proof you didn’t release inappropriate information.

You may also want to consider how your documents are structured before releasing. In the example at the beginning of this article, the records request included the agency’s Use of Force Policy. If your policy also includes tactical or procedural information that could jeopardize officer safety if it was released, you may want to consider redactions.

5. Build into Policy

Records retention and release should be built into your agency’s policies. A comprehensive Records Maintenance and Release Policy is the first place to start. It should cover the responsibilities of the open records officer, the process for responding to requests and denying requests, types of information that may be subject to release restrictions, and the agency’s process for dealing with inadvertent release of records.

But don’t stop there. Other policies that should include guidance on records maintenance and release include:

  • Officer-involved shooting
  • Portable audio/video (body cams)
  • Media relations
  • Protected information

Once your policies are squared away, remember the importance of regularly training on them. You want officers to be prepared to respond to FOIA requests and be familiar with proper records retention. Developing the policies and putting them on the shelf isn’t enough; you must review them frequently.

Balancing Act

Responding to Freedom of Information Act requests can be stressful and challenging, especially when the requested records land in a grey area. Following an officer-involved shooting, for example, it’s common to receive requests for body cam video. Leaders must balance the benefit of transparency afforded by release the video with the impact it might have on the investigation and on the family members of the suspect or the victim. You don’t want to gain a reputation for stonewalling on records requests or making things unduly burdensome for those requesting records, but at the same time you don’t want to haphazardly release swaths of records into the public domain where you have little to no control over them.

The process is there for a reason – the key lies in following it and communicating as clearly and openly as possible along the way.

Derek Clepper is a licensed attorney in Pennsylvania, where he has served as prosecutor for more than 50 jury trials and thousands of bench trials. Currently, he serves as a content developer for Lexipol and led the development of Lexipol’s Law Enforcement policy manuals for Georgia, Indiana, Iowa, Alabama, Pennsylvania, Montana and Virginia. Derek teaches constitutional law, criminal procedure and mock trials at the college level. He lives in Boiling Springs, Pa., with wife Sara and four sons.