In May of 2019, a transparency activist named Emma Best submitted freedom of information requests to sixty-eight state and local police departments for records relating to the hacker group Anonymous and the broader “hacktivist” movement.
She submitted these requests to agencies across three dozen states, mostly targeting state-level agencies or police departments in larger or mid-size cities like Houston, Denver, and Cleveland.
Although the requests were virtually identical,
they generated very different responses. One law enforcement agency charged $1.25 for the records, for example, while another asked for more than $130,000.
Only around ten percent of the agencies turned over any records, and these productions mostly contained the same, six-page DHS memo about Anonymous and other associated hacker groups.
Roughly a third never responded at all.
These requests also generated a substantial number of rejections. Roughly a quarter of the police departments—15 out of 68—told Best that the records were protected from disclosure by the state’s public records law.
In doing so, they relied on a wide array of statutory protections. They claimed that the records were part of a criminal investigative file,
contained critical security infrastructure information,
revealed nonroutine law enforcement procedures or techniques,
related to network security,
exposed vulnerabilities to a terrorist attack,
could only be produced to a citizen of the state,
contained interagency deliberative material,
contained personal information from an individual “exercising rights secured by the Constitution,”
and would, if disclosed, constitute an unwarranted invasion of privacy;
and that the records themselves interfered with an ongoing law enforcement investigation,
failed to describe the records clearly enough,
and imposed an unreasonable burden on the agency.
One agency even invoked the notorious “Glomar” response, claiming that the requested material was so sensitive that the department could not reveal whether it had any responsive records at all.
Every state has a set of transparency statutes that bind state and local agencies.
State public records laws require that agencies turn over all requested records except those protected by an enumerated exemption.
State open-meeting laws require that agencies permit the public to attend certain meetings.
And state open-data laws require that state and local agencies make certain types of data public.
These are just some of the many legal requirements that compose the state and local statutory transparency law regime.
State and local police departments are, in theory, bound by the same transparency law obligations that apply to every other agency. In reality, in spite of these laws, police departments maintain extraordinary levels of secrecy, as the example of Best’s public records requests helps to illustrate.
The example of Best’s public records requests helps to illustrate how this occurs. Through a web of informational protections extended by all three branches of government—statutory carve-outs crafted by legislators, favorable interpretations of those statutes extended by judges, and agency-level resistance to transparency obligations—police departments systematically evade meaningful public oversight through transparency law mechanisms. This web of protection gives rise to a kind of law enforcement “exceptionalism”—one that is comparable in some ways to the secrecy exceptionalism extended to national security agencies in the federal context.
The problem of police secrecy has received significant public attention in recent years. In the wake of George Floyd’s murder and the nationwide protests that followed, city councils and state legislatures around the country passed a wave of police reform bills, many of which involved changes to the transparency statutes that govern police.
And high-profile legal battles over the disclosure of police body camera videos have received national attention, leading to a growing public awareness of the complex body of laws that govern police recordings and other materials.
Transparency law reforms around policing have also garnered increased scholarly attention. Many policing and criminal justice scholars have pointed to improved transparency as an initial step toward broader reform.
Others have examined secrecy in policing as part of a larger exploration of the ways that administrative law processes apply to police.
And an important subset of policing and criminal law scholars have engaged with the transparency law regime directly, often by exploring the application of transparency law statutes to specific categories of police records, especially police disciplinary records and body camera recordings.
Yet the legal provisions governing these individual categories of records constitute only a small slice of the complex transparency law regime that governs access to police information. Missing from the current scholarship is a more sustained examination of the relationship between generally applicable transparency law statutes and police secrecy writ large.
Even when a specific exemption to a privacy law is tightened, law enforcement agencies can and often do continue to withhold records by invoking an array of other exemptions.
The effectiveness of record-specific reforms is blunted by the sheer number and variety of secrecy tools at police departments’ disposal. These narrow provisions are embedded within a broader legal and normative regime that permits police departments extraordinary secrecy. This regime itself warrants a closer look.
While the transparency law scholarship could help fill this void, this work has historically focused on federal transparency statutes, rather than the complex web of statutes that operate at the state and local level.
This is not uniformly true: Transparency law scholars have questioned the specific policy justifications that undergird certain law enforcement exemptions,
for example, and argued that public records litigation can and should be used to fill accountability deficits created by deficiencies in more traditional mechanisms of police oversight like constitutional criminal procedure.
Further, communications and journalism scholars, along with scholar–practitioners, have explored the application of individual state statutes to the policing context and the disclosure requirements of specific categories of police records.
But much of this transparency-focused scholarship is concerned more narrowly with police secrecy around new and emerging technologies—especially surveillance technologies and predictive algorithms.
And, overall, the transparency law scholarship could do more to flesh out the many ways that transparency statutes at the state and local level privilege law enforcement agencies and ultimately facilitate, rather than impede, police secrecy. Increased access to information and data is often proposed as a partial solution to the problems of policing.
Conversely, the value of transparency in policing has also come under increased scrutiny, criticized as an insufficient instrument for securing meaningful change.
And yet we know surprisingly little about the actual mechanics of police-records secrecy.
This Article aims to illuminate the less visible parts of the legal architecture of police secrecy—those parts that scholars and policymakers often overlook. In doing so, it offers three contributions. First, it provides a descriptive account of the ways that these transparency laws apply to police departments. It focuses on public records laws in particular, exploring both the fifty states’ public records statutes and the much larger web of exceptions and provisions relating to police secrecy that are scattered throughout each state’s legal code.
Further, it focuses on the law not just as it is written by legislatures and interpreted by judges but also as it is applied by police officers and other bureaucrats on the ground. Transparency law scholars have done excellent work in recent years examining the ways that federal transparency laws like the Freedom of Information Act (FOIA) are utilized by requesters.
Yet the equivalent state-level statutes are exceptionally difficult to study. There are fifty separate public records laws across the states, and hundreds of thousands—if not more—of state and local agencies that must comply with these laws.
The complexity and scale of this regulatory regime poses a research challenge.
This Article explores how these statutes operate in practice by drawing on public records datasets containing tens of thousands of requests to police departments around the country.
It analyzes these requests to better understand whether and how police departments either comply with or evade the strictures of the law. And it concludes that the data—while limited in scope—help to illuminate how these transparency law obligations too often work to foster police secrecy, rather than scale it back. Further, this Article shows that much of this police secrecy power is concentrated at the administrative level, at the moment when police officers and other policing bureaucrats first receive and respond to requests.
Second, the Article offers a normative account of police secrecy exceptionalism. It identifies three of the central claims used to justify these extraordinary protections: that secrecy prevents criminals from circumventing the law, protects civilians’ and police officers’ privacy, and ensures the continued effectiveness and efficiency of law enforcement agencies. It argues that these claims are deeply flawed and do not justify the exceptional levels of secrecy currently enjoyed by police. Further, it contends that one-off reforms of specific statutory provisions will be insufficient and that broader structural changes are needed.
Third, the Article has implications for ongoing debates about the structure, scope, and value of transparency in policing. Some policing scholars have pointed to improved public access to police information as an initial step toward broader reform.
Others have critiqued this approach, arguing that scholars and policymakers have pursued transparency in policing at the expense of more substantive and radical changes and that improved access to police information is not the “panacea” that it’s often claimed to be.
This Article lends support to many of these critiques. It explores the failings of the current transparency law regime and acknowledges that transparency alone will not bring about the structural changes needed to curb centuries of police abuse, especially against Black communities and poor communities of color.
Yet by mapping out the infrastructure of police-records secrecy, the Article also highlights the ways that improved transparency in policing may serve as a useful antecedent for more radical transformation—a preliminary step that can be used to guide and inform advocates going forward.
The current scholarship mostly focuses on narrow categories of records like body camera footage and police disciplinary records.
But these statutes in fact cover all manner of police records: financial documents, emails, text messages, prison logs, vendor contracts, and internal policies. And these records can be put to use in myriad ways. Take the example of the campaign to eliminate criminal justice fees. Recent efforts have demonstrated how fragmented and diffuse these various sources of financial penalties can be, and advocates have drawn on public records statutes to map out this financial infrastructure in order to then abolish it.
Separately, this Article has implications for the transparency law scholarship. Scholars have explored the many ways that national security agencies are granted exclusive secrecy tools, and they have questioned whether such extraordinary protections are warranted.
Yet there has been little equivalent effort to map out the unique treatment extended to law enforcement agencies in the state and local transparency law regime across the fifty states.
This literature could benefit from more sustained attention to state-level statutes as a whole. But additional scrutiny of these statutes as they apply to key government functions like policing is especially critical.
By exploring administrative-level policing responses, in particular, the Article helps to deepen our understanding of how these laws operate on the ground and round out the scholarship’s current focus on federal-level transparency law issues.
The Article proceeds in three parts. Part I explores the text, structure, and application of state transparency laws’ policing provisions. Part II chronicles the ways that these laws privilege police departments. It explores statutory carve-outs extended by the legislative branch, favorable interpretations handed down by the judiciary, and efforts to expand the scope of these protections from below by the police departments themselves. Part III examines the doctrinal and policy-oriented bases for secrecy exceptionalism, concluding that these justifications do not support the extraordinary levels of secrecy currently extended to police. It concludes with a discussion of possible remedies.