December 4, 2015 by

Policy Secrecy in Ypsilanti

PolicingProjectIcon_TransparencyIn its May 2015 report, the President’s Task Force on 21st Century Policing called on police departments to “establish a culture of transparency and accountability to build public trust and legitimacy.” Toward that end, the Task Force said that department policies—on everything from new policing technologies to the use of force—should be “clearly articulated to the community and implemented transparently so police will have credibility with residents and the people can have faith that their guardians are always acting in their best interests.” Unfortunately, when it comes to policy transparency, far too many police departments still fall short of the mark. The recent controversy between the Ypsilanti Police Department and the City Council is a case in point.

Following a public outcry over the arrest of a Black Lives Matter protester in Ypsilanti, Michigan, the local City Council scheduled a hearing to discuss strategies for improving the Department’s relationship with minority residents. In preparation, the Council made what must have seemed like a perfectly routine request: it asked the Department to send over its policies on a range of issues, including forfeiture, racial profiling, officer training, and the use of force. But as councilmembers soon learned, getting basic information about police department policies and practices can at times be difficult—even for the elected officials charged with running the government.

In justifying its refusal to comply with the Council’s request, the Department explained that its policies are confidential, and that “the safety and efficiency of the police department” would be “severely compromised” were the policies made public. The City Attorney representing the police added—somewhat remarkably—that individual councilmembers could file Freedom of Information Act (FOIA) requests to access “unrestricted” police documents.  In short: the Council had no right to review policies that the Department preferred to keep secret.

Unfortunately, requests for information about police department policies and practices too often are met with a no.

Earlier this year, the Sheriff’s Department in Dutchess County, New York, refused to comply with a federal subpoena to turn over its policy regarding “the types of reports” that officers must fill out whenever they use Tasers or stun guns. The reason? Because “the criminal element could take steps to circumvent these procedures.” The Department’s attorneys failed to explain how the criminal element could make use of this information. The fact that many departments post their Taser policies online casts serious doubt on the Sheriff’s Department’s blanket assertion of privilege.

And in 2014, the New York City Police Department twice denied a blogger’s FOIA request for the Department’s policy on handling FOIA petitions, claiming that the policy itself was exempt from disclosure because a Department attorney had participated in its drafting. (The NYPD later insisted there was no such policy, and then ultimately turned over the policy along with the rest of the department’s manual.)

These incidents reflect a culture of secrecy surrounding policing that is fundamentally inconsistent with democratic accountability. As Ypsilanti councilmember Pete Murdoch explained, “If those policies are not forthcoming, city council cannot exercise its responsibility to oversee the operations of the city.”

To be clear, secrecy undoubtedly has a role to play in policing. Law enforcement is difficult, dangerous work, and police officials are right to be concerned with releasing information that would make it easier for criminals to evade detection or that would put police officers at risk. But the need for secrecy is not nearly as acute as some police officials claim.

The key distinction is between operational details and governing law.

For example, we would not want a police department to broadcast its protocols regarding the optimal placement of listening devices or its techniques for recruiting confidential informants. Making this information public would indeed encourage circumvention and potentially put officers at risk. But the same cannot be said for a department’s policies on when the use of these techniques would be appropriate—for which crimes, based on what level of suspicion, and with whose approval. Nor is there a plausible argument for withholding a department’s policies regarding consent searches, public protests, or the use of force. All of these policies can be made public—and be publicly debated—without undermining law enforcement interests.

Indeed, what is encouraging is that a lot of police departments seem to agree. Enough, in fact, that it undermines claims by other departments that extensive secrecy is necessary. Departments in Austin, Los Angeles, Chicago, and the District of Columbia all have made their manuals easily accessible on their department websites, as have departments in smaller towns like Fullerton, California, and East Haven, Connecticut. The FBI likewise has made its manual available online, although redacted in part. When many departments make a certain policy public, with no evident ill effect, claims of secrecy become more doubtful.

Even the Ypsilanti Chief of Police ultimately softened his stance. At the next City Council meeting, the Chief explained that although he would not disclose the department’s “active shooter” protocols for fear of putting officers at risk, he would be willing to share with councilmembers the department’s use of force continuum, as well as its policies for handling demonstrations. This is a welcome first step. But departments can and should do more by making their policies freely available to the public, thereby inviting robust public debate over the form that such policies should take.