Submitted to the Civilian Review Board subcommittee of the City of Austin Police Oversight Focus Group by Scott Henson, The Sunshine Project for Police Accountability, November 10, 1999

As you develop a civilian review board proposal, I encourage you to adopt this general guideline: All complaints and investigations against officers should be public to the same extent as they are under the Texas Open Records Act, as modeled locally by the Travis County Sheriff's Department.

The panel's concerns about making complaints public supposedly stem from a concern for the complainant's privacy. "What if a complainant doesn't want to reveal embarrassing information in the complaint?" was the strongest argument I heard expressed at the recent public hearing on behalf of secrecy. However, there are very serious flaws in this position, which I will outline here.

In criminal cases, witnesses or complainants must make their allegations publicly in order to prosecute. In America, the accused has a right to confront their accuser in public. It follows in a long tradition of Ango-American jurisprudence to insist that any evaluation by some governmental body -- be it a CRB or a trial court -- of allegations which might deprive a police officer of his or her employment rights be held in public. It makes the process accountable because the public can see for themselves whether justice was served.

Yes, complainants have certain privacy rights. But these are already protected by U.S. and Texas common law. The Texas standard for common law privacy related to public records is twofold -- information may be withheld if it is 1) highly embarrassing and 2) there's no compelling public interest in the information. These rights exist regardless of what the city decides, but they should not be extended any further for Austin's CRB.

Consider the situation where the embarrassing situation which is being concealed by a complainant might actually mitigate charges against the officer. One can envision a hypothetical situation where a man is beating his spouse, while a police officer tells him to stop then strikes him with a club until he relents. Such a complainant might make a big deal showing photos of billyclub bruises and waving about his medical bills as evidence of brutality. But without the clearly embarrassing additional information that he was beating his wife, the public could not come to a reasonable conclusion about what really happened.

When someone makes a complaint against a police officer it is not a frivolous act like dropping a note in the suggestion box at a retail store. These folks are making allegations that could adversely effect an officer's employment -- especially on more serious allegations. If someone makes complaints that will endanger the officer on the job, then it's reasonable to insist that they agree to give up a certain amount of privacy in order to allow a public process to occur to determine the verity of the complaint. If they're not willing to do that then the charges do not merit endangering the employment situation of a public servant.

It was suggested that complainants might check a box whether they wanted their complaints to be public or closed. Given that attendees at A.W. Dean meeting said APD Internal Affairs and police officers actively try to talk folks out of filing complaints, it's reasonable to predict that police officers and IAD might actively try to convince folks to check the "closed records" box without fully explaining the issues or interests. As stated above, there's a compelling public interest in making the entire process open, public and accountable which outweighs the arguments for secrecy.

Really there are two issues: whether complaints and documents should be public and whether CRB hearings should be public.

First, on closed hearings: It's important to realize that the impetus behind creating a CRB is to heighten accountability for the police department and specifically its disciplinary process. While it's true that many other cities have review boards, it's also true that many of them are ineffective or even effectively controlled by local police unions. If the CRB does not conduct its business in public then it's not accountable. So if it turns out to be just another ineffective do-nothing body, nobody can really document it if hearings are held in secret.

Second, as to making documents public, for the reasons stated above I believe that all records related to this process should be public to the fullest extent allowable under the Texas Open Records Act, just as they are at the Travis County Sheriff's Department.

Thank you for considering these matters.