Law Meant to Protect Privacy Hinders Police Accountability

By Austin Nolen

In the last several years, Americans on all sides of the political spectrum have learned the value of being able to access information about law enforcement investigations.

Black Lives Matter activists demanded access to police files to analyze internal shooting investigations, while conservatives used transparency laws to investigative alleged abuses by federal law enforcement agencies during the Obama administration.

In Pennsylvania, however, state law bars the release of all criminal investigation files, even in cases where the public interest in disclosure vastly outweighs the importance of secrecy.

Ironically, the nearly-unique level of secrecy afforded to Pennsylvania agencies resulted from an attempt to protect the civil liberties of citizens of our state from police officers.

Transparency advocates and even some government officials are now calling for the adoption of a more nuanced approach to better suit Pennsylvania’s shift to open government.

Pennsylvania’s Criminal History Record Information Act has its roots in the era when the country was transfixed by the unfolding Watergate scandal. On August 6th, 1973, embattled President Richard Nixon, whose dirty tricks were already becoming public, signed into law the Crime Control Act of 1973.

Just weeks earlier, Nixon had refused to turn over recordings he made in the Oval Office, setting off a crisis as the executive, the Congress and the courts battled over the tapes. He had only a year left in his presidency.

Influenced by growing fears about the abuse of computer databases by the government, Congress had inserted into the Crime Control Act a provision requiring state and local agencies which received federal funds to develop privacy controls for the criminal history data they held on citizens.

Regulations detailing the necessary privacy controls were created by the federal government two years later.

In 1979, Pennsylvania legislators reacted by passing CHRIA, which regulated the accuracy of and access to records of arrests, convictions and other criminal history. The state legislature went beyond the federal government, however, and also placed new restrictions on investigation and intelligence information created by law enforcement.

While Congress left state and local police to do as they wish with investigative and intelligence records, the General Assembly barred police from putting these records into any kind of computer system.

This ban remained in place until 1990, when, after years of lobbying by state and local law enforcement, the General Assembly amended CHRIA to permit the computerization of investigative and intelligence records.

Law enforcement’s view, as summarized by then-Attorney General Ernie Preate during a State House Judiciary Committee hearing on the computerization proposal in 1990, was that the amendment “would simply take the handcuffs off the police and the prosecutors and allow us to use basic computer filing systems to organize, retrieve and review information which we now do manually.”

Representative Jeffrey Piccola went further, alleging in language common to the 1990s War on Crime ethos that opponents of the amendment were in favor of “the protection of pedophiles, the protection of drug dealers, the protection of serial killers.”

J. Michael Eakin, then District Attorney in Cumberland County, also testified in support of the bill, relating a personal “vision” in which Mr. Spock is barred from using a computer aboard the Starship Enterprise to look up information about a hostile vessel because the crew is “in the Pennsylvania zone.”

Nevertheless, organizations such as the ACLU and some state lawmakers, among them Vincent Fumo, disagreed strongly with computerizing more law enforcement records.

Gary Gildin, an ACLU attorney, told the House Judiciary Committee that he was not advocating for, “as some persons have suggested, protection of organized crime, protection of criminals, protection of child pornographers.”

Rather, Gildin told the legislators, the ACLU was interested in protecting the privacy of citizens of Pennsylvania.

“From a technological standpoint,” he noted that the legislators could “authorize personal dossiers to be computerized on each and every citizen of this Commonwealth, and in all these means we could, I’m sure, increase the ability of the law enforcement agencies” to prevent crime.

Gildin made the point to legislators that law enforcement efficiency should be balanced against the legitimate privacy interests of citizens.

Fumo put it more bluntly: “This bill would allow for vaguely defined information… on any citizen in the Commonwealth… to have all that information put into a computer somewhere in a central data base and have unlimited access to it by so-called criminal justice agencies and their employees.”

“If this were in effect back in the days of Mayor Rizzo,” the Senator from Philadelphia alleged on another occasion, “many outstanding citizens of Philadelphia would be in this computer bank as suspicious of criminal activity.”

“I fully submit,” he said, that “their private lives to the best of that spy squad would be emblazoned somewhere in a computer data bank for every happy wacko who has access to one of the computers to punch up.”

In a very telling twist for the political culture of Pennsylvania, both the law and order Preate and the civil libertarian Fumo eventually served time in federal prison for political corruption offenses. Eakin, meanwhile, resigned from the state Supreme Court one year ago after being implicated in the “Porngate” scandal.

Partially in anticipation of these privacy objections, the supporters of the CHRIA amendments inserted their own proposed safeguards into the bills.

According to Preate, those safeguards “would make Pennsylvania the most restrictive State in the nation in the control of its law enforcement information,” a condition, he said, that, “the law enforcement community is prepared to live with.”

One of those restrictions was a new ban on the release of investigative records to anyone outside of law enforcement.

At the time, this may not have seemed extreme. Pennsylvania’s public records law provided access to only a limited category of records, and investigative records were not among them.

The state Supreme Court noted in a 1999 case, North Hills News Record v. Town of McCandless, that “the provisions of the Pennsylvania Right to Know Law establish a narrower framework… than has been established by a number of other state legislatures.”

In 2008, however, state legislators enacted what one state official later described as a “sea change” in Pennsylvania’s open government framework.

The Right to Know Law, according to Erik Arneson, who heads the state’s Office of Open Records, “flipped the presumptions” of the prior law and provided that all records were to be assumed public.

The law still contains a broad exemption for law enforcement records, but this exemption, like all of the others in the law, can be waived by a law enforcement agency if the release of records is judged to be in the public interest.

Not so for CHRIA. The provision bans the release of criminal investigation records outside of law enforcement regardless of legitimate public interest in some of those records. An official who releases records anyway could theoretically face civil or criminal sanctions.

It even bars other government agencies from performing oversight of the police. For example, in the aftermath of the G20 protests in Pittsburgh in 2009, Pittsburgh Police used CHRIA to withhold information from the City’s civilian review board, which was investigating allegations of excessive force against officers.

This across-the-board ban on any release of investigative records is almost completely unique in the United States. In 1985, privacy attorney Robert R. Belair found that most states protected investigative information only through their public records laws.

“Most frequently,” Belair wrote in Intelligence and Investigative Records, “states have made exceptions to their public records laws, authorizing the withholding of… investigative data.”

Those laws, including the federal Freedom of Information Act, usually contain provisions requiring the release of investigative records when no harm to the government operations or to someone’s privacy would result from that release.

Over two decades later, little has changed, according to a review of the Open Government Guides for each state produced by the Reporters Committee for Freedom of the Press.

These guides survey the laws about public records in every state and the District of Columbia and are written by attorneys practicing records law in each respective jurisdiction.

According to the latest edition from 2011, only Pennsylvania and two other states had laws restricting access to police files on top of public records law exemptions for the same records. One additional state has a CHRIA-like provision without an exemption in the open records law.

In contrast, over thirty states require the release of investigative records unless they will cause a specific harm or if their disclosure is found to be in the public interest. Most accomplish this through their public records law, but other states have unique arrangements.

In Montana, for instance, the Criminal Justice Information Act of 1979 bans the release of investigative information in a manner similar to CHRIA. However, the Montana Supreme Court has found that the state constitution requires agencies to release these records anyway, if their release would be in the public interest.

In Bozeman Daily Chronicle v. City of Bozeman, a 1993 case, the Montana Supreme Court ruled that because “the nature of the alleged misconduct” in an investigation into a police officer “ran directly counter to the police officer’s sworn duty to uphold the law,” there was a strong public interest in the release of records in that particular case.

The focus in most of these states on the potential harms caused by the release of investigation records or the public interest in their release means that amending CHRIA would not necessarily expose sensitive government information improperly.

Moreover, CHRIA contains separate provisions regulating the sharing of information among government agencies, provisions which could be updated to better protect the records that are not disclosed to the public.

Similarly, the federal Privacy Act regulates the sharing of personal information between government agencies while also permitting appropriate release of government records.

In an interview, Belair told The Declaration that “FOIA trumps the Privacy Act” when it comes to public requests, even as the Privacy Act continues to regulate internal government information sharing.

FOIA, Belair noted, has its own provisions to protect private information.

In light of the disparity between Pennsylvania and other states, some advocates and government officials are calling for Pennsylvania to revise CHRIA to permit a more nuanced balance to be found in the state.

Terry Mutchler, an attorney who represents and advocates for records requesters, says that the state legislature should look into revising CHRIA because “in the Commonwealth, investigative records are off the table forever,” which doesn’t allow the public to “judge the agency’s performance of its duties.”

Mutchler, who was the first director of Pennsylvania’s Office of Open Records, told ‌The Declaration that “sunshine is the best way to insure agency efficacy, that things are being done well and right.”

OOR Director Arneson agrees. “You really do need to look at amending and updating CHRIA,” he said, in order to permit investigation records to be released in appropriate cases.

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