The report was initially filed with the court under seal by request of the county, whose attorneys have maintained that the content and the names of the officers identified in it — including those currently or formerly in leadership positions — should remain out of the public eye.
The county asserted in court documents and at a hearing Friday that the information in the report was taken from “personnel records,” including internal affairs investigations and department emails, and is therefore protected under Maryland statutes.
But the plaintiffs, more than a dozen members of the United Black Police Officers Association (UBPOA) and the Hispanic National Law Enforcement Association (HNLEA), have been arguing since last summer that the lengthy report and dozens of pages of supplemental material should be made public in the interest of transparency and accountability.
Community groups and a news organization joined the push to unseal the documents amid nationwide calls for police reform. The county’s top public defender and the state’s attorney also filed motions asking for access to the full report.
The first version of the analysis, which was heavily redacted, was filed June 18 — the same day that the department’s police chief, Hank Stawinski, announced his resignation. In the months since, additional excerpts from the report have been unredacted, but the plaintiffs maintain that crucial information remains outside the public’s grasp.
On Friday, during nearly three hours of questioning at a hearing before Judge Theodore D. Chuang in U.S. District Court in Maryland, attorneys for the plaintiffs, the community organizations, the state’s attorney’s office and the office of the public defender all argued for access to the report’s full findings.
John A. Freedman, an attorney for the plaintiffs, told the judge that the county has yet to clearly articulate how the government’s right to privacy outweighs the public’s right to know about alleged misconduct by taxpayer-funded institutions and officials. Freedman also argued that the county’s confidentiality argument is overbroad and urged the judge to compel them to make individualized privacy arguments for each person whose name is redacted.
“We want this fight to be brought out into the public,” Freedman said, telling the judge that his clients only filed suit after complaining internally for years without remedy.
Tyler O’Connor, who intervened in the case on behalf of the county chapter of the NAACP, the Real News Network and the organizations Community Justice and National Action Network, concurred with Freedman’s privacy argument. He told the judge that there can be “no public accountability with anonymity.”
“You can’t wave privacy around like some kind of shibboleth that automatically throws things under seal,” he said.
Tension built when the lawyer representing the state’s attorney’s office, Perry Paylor, explained that prosecutors need access to the report to ensure their police witnesses are not among those accused of racism or wrongdoing — due diligence they are required to do under law. When the state’s attorney’s office asked the county for a copy of the unredacted report, the county attorney said no, citing the judge’s seal in court.
“I think it’s a little troubling that they’re trying to say they’re going to hide behind the federal court order,” Chuang said during the hearing.
The judge said the dispute would be more appropriate to resolve in state court and asked why the state’s attorney’s office couldn’t just use the avenues already available to them, including internal affairs files through the police department, to ensure their police witnesses were unimpeachable.
But Paylor said that would not be efficient, because the expert report already exists, or sufficient, because the report reveals instances of wrongdoing that were reported to internal affairs but never investigated.
“Because of the failure of the police to conduct adequate investigations,” Paylor said, “we cannot rely solely” on the files produced by police internal affairs.
Paylor told the judge the relationship with the police department has been “contentious.”
Nicolas Riley with Georgetown Law’s Institute for Constitutional Advocacy and Protection, argued for disclosure on behalf of the Prince George’s County public defender’s office.
Like the state’s attorney’s office, he said, the public defender’s office needs to know if there are misconduct allegations against police officers testifying against their clients.
In any case before the trial court, prosecutors are required to disclose to the defense any impeachable evidence they have about a potential state witness. In theory, the judge said, unsealing the report for the state’s attorney’s office alone would mitigate the public defender’s concerns. But Riley countered by saying information in the report suggests the state’s attorney’s office may not have turned over relevant information.
It shows, Riley said, why there is public interest in unsealing the entire report for all parties.
Riley suggested a middle-ground resolution to the judge. Unseal everything but the names, he suggested, then give the county a strict time frame to make their privacy arguments for each individual mentioned in the report. The decision, Riley said, should not be all or nothing.