10 UC Irvine Law Review (2019, Forthcoming)
49 Pages Posted: 12 Mar 2019
Date Written: March 11, 2019
Police officers around the country are accused of misconduct every day. Their misconduct is alleged and documented in the form of civilian complaints, internal affairs reports, performance reviews, disciplinary board findings, and other records. These misconduct records contain information that is arguably both relevant to the public’s interest in holding police officers accountable, and personal to the officer. But jurisdictions provide vastly different answers to the question of who should have access to these records. Some states prevent the public from accessing any police misconduct records. Many grant public access to a limited category of misconduct records, and deny access to most others. A small minority of jurisdictions make all such records publicly available to anyone who requests them.
These varied approaches to disclosure of misconduct records stem from widely divergent understandings (or misunderstandings) of privacy rights. When states deny public access to police misconduct records, they do so on the theory that police officers have a privacy interest in the content of the records. While the notion of police officers’ right to privacy is frequently invoked, it is rarely examined. Many scholars have identified controversies surrounding a variety of other legal protections for police officers that insulate the officers from public accountability. But there is a notable dearth of legal scholarship analyzing what police officers’ right to privacy means and when it applies.
This article provides a unique contribution to the scholarly literature by examining the commonly proffered privacy justification for refusing to disclose police misconduct records through the lens of privacy law and theory. The article scrutinizes what advocates on both sides of the spectrum, arguing for privacy or transparency in police misconduct records, do not: whether and to what extent privacy law supports the non-disclosure of police misconduct records.
The article begins by placing this issue in its real-world context: an increasingly heated dispute over a once rarely critiqued assumption, that police misconduct records are a private matter and should not be subject to public scrutiny. It then transitions into a historical discussion of privacy law from both judicial and scholarly perspectives, with a focus on developing understandings of the right to informational privacy. The article applies the discussion of privacy law to current controversies over police misconduct records, addressing whether police officers have a legally cognizable right to privacy in their misconduct records and how lawmakers should balance police privacy rights against the interests of other parties seeking access to misconduct records. Finally, the article closes by acknowledging the concerns that privacy proponents have voiced regarding the practical effects of disclosure on both police officers and policing reform.
Keywords: police, police misconduct, police privacy
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