Trying to unmask Seattle Police Department police officers who may have participated in the insurrection at the U.S. Capitol on January 6, then-law student Sam Sueoka turned to public records requests under state sunshine laws.1 Six police officers who were in Washington, DC on January 6 sued Sueoka and other members of the public seeking information, aiming to block release of the information.2 Meanwhile, the Seattle Office of Police Accountability found that two of the six officers had violated departmental policies or laws in their conduct during the U.S. Capitol riot on January 6.3 The report did not disclose the officers’ names.4 A state Superior Court Judge sided with Sueoka on the right to public disclosure, but a panel of the state appellate court reversed, siding with the police officers on secrecy.5 This case involving my local police department—reportedly home to the largest number of officers identified as in DC during the January 6 events6—is just a recent example of the myriad legal battles surrounding police secrets and illustrates why I find Christina Koningisor’s article Police Secrecy Exceptionalism in the Columbia Law Review so timely and important.
Koningisor explains that every state has “transparency regimes”—sets of statutes that include public records law that give the public access to information, open meetings and open-data laws, among other obligations. Police departments are theoretically an agency like other governmental agencies bound by such transparency regimes. Yet police departments enjoy numerous protections that maintain opacity and police secrecy. Koningisor excavates the web of carve-outs and exemptions for law enforcement that together creates what the article terms “law enforcement exceptionalism” that the article analogizes to the secrecy that national security agencies enjoy. Protests and pain over police killings have led to radical transparency-based ideas like police-worn body cameras and reforms in police transparency laws. Yet, as Koningisor’s excellent article shows, the matrix of laws and practice exempting police departments from transparency regimes remain robust, maintaining police secrecy exceptionalism.
A valuable contribution of the article is to collect and explore the web of transparency laws and exemptions scattered across the codes of fifty states. Koningisor offers a taxonomy of exemptions, such as law enforcement-specific exemptions, investigation-related exemptions, privacy-related exemptions, public safety-related exemptions, and even trade secrecy-based exemptions.
Amplifying the impact and analyses, Koningisor does not just stop at the laws on the books. Rather, the article tackles the realities of statutory construction and constriction by police and bureaucratic practices, not just statutory text and judicial interpretation. Recalcitrant and narrow construction by responding police agencies can magnify the web of exemptions and exceptions, and narrow access provisions.
Studying myriad practices on the ground across fifty states with numerous local departments is a challenge. Methodologically, Koningisor draws on the nonprofit news site MuckRock’s dataset of public records requests and law enforcement agency responses. MuckRock’s dataset is generated via its web site, which gives users a streamlined way to submit public records requests. The dataset contained approximately 21,000 requests to 3,500 state and local law enforcement agencies across all 50 states. The dataset also contained about 24,000 requests to other agencies not involved law enforcement. Koningisor found that the requests submitted to law enforcement agencies via MuckRock had worse response rates, rejection rates, and other metrics of nondisclosure than requests submitted to agencies not involved in law enforcement.
Sueoka, the law student who filed the January 6-related public records requests, is currently applying those precocious talents as a public defender. This also is illustrative of the practical utility of a strong command of police transparency and secrecy regimes. Access to information can make a difference in cases and clients’ lives. Understanding how to navigate the web of transparency regimes and exceptions has great practical utility. This is another reason why I celebrate Koningisor’s article. One of the highest compliments I can give is that the article bridges academia and practice, and has real-world as well as scholarly impact.
- See, e.g., Martha Bellisle, Lawyers for Seattle Officers Leave Public Records Case, KIRO 7 (July 10, 2021).
- Doe 1 v. Seattle Police Department 531 P.3d 821, 829, 860-861 (Ct Apps Wash. Div. 1 2023).
- Martha Bellisle, Report: 2 Seattle Police Officers Broke Law during DC Riots, Associated Press (July 8, 2021: 249 PM PST)
- Closed Case Summary from Director Andrew Myerberg, Office of Police Accountability, Case No. 2021OPA-0013 (June 28, 2021).
- Doe 1 v. Seattle Police Department 531 P.3d 821, 829, 860-861 (Ct Apps Wash. Div. 1 2023)
- Azmi Haroun, Seattle Police Department had the Most Officers in DC on January 6, Business Insider (Apr. 3, 2021)
