Last night's update on our drawn-out quest for freshly updated data showing how discipline decisions by Chief Mike Reese sometimes veer from Police Review Board recommendations—including a statement of support from Mayor Charlie Hales' office—finally stirred a response from the police bureau.
That response, however, was not the one we wanted. It was a big, fat no. Police bureau spokesman Sergeant Pete Simpson sent me a statement last night.
After consulting with Chief Reese and the City Attorney late yesterday [Wednesday, July 24], we are unable to release specific discipline imposed in the cases of the recent review board memo for the following reasons:
ORS 192.501(12) exempts from disclosure "A personnel action, or materials or documents supporting that action" unless the "public interest requires disclosure in the particular instance." The Portland Police Bureau cannot comment on personnel matters because we must protect public employees’ privacy interests consistent with Oregon Public Records Law and relevant collective bargaining agreements.
We believe that releasing specific discipline imposed on employees would violate our obligation as the employer.
It's a curious response, given that the bureau in February sent me exactly the same kind of data (pdf) they now say they can't provide. And that data is valuable. It provides an important window into how the chief respects the work of a board that's supposed to provide a civilian check on discipline. My reporting found that while in most cases the chief adopts the review board's recommendations, he also saved the jobs of three cops overwhelmingly targeted for dismissal on accusations of dishonesty. He also went easy on some other cops facing strict discipline, including Sergeant Kyle Nice.
So why the change of tune? Allow me to ask and answer some questions.
What's the problem here?
Blame Oregon's public records law, and also concerns over the bureau's contracts with the Portland Police Association and the Portland Police Commanding Officers Association.
Why blame records law?
Oregon records law says public agencies aren't required to create requested documents if they don't already exist in the form requested. Simpson says the bureau created the first matrix comparing the recommendations to actual discipline at the behest of Hales' office, not because of media requests. The bureau, in fact, had previously refused to assemble and release the data. But once it was assembled, even if the media wasn't the reason why, it became a public record and then was ultimately released.
But Simpson says the bureau never intended to maintain the matrix as a proper database. So it stopped compiling the data, and no one has told them to do otherwise. And that means it doesn't have to create an updated matrix—based on the latest batch of Police Review Board reports—just because I've filed a records request asking for one.
But the bureau loves to talk about "transparency." Why wouldn't they take the time to do it anyway, especially since the information already is mostly out there?
True, the bureau could still choose to update the data even if it's not required to do so. But that's where the bit about the union contracts comes in.
What do you mean?
The bureau says, because the previous matrix included so many review board recommendations, going back for several years, that it was sufficiently difficult enough to match the information in the matrix to the telling details contained in the narratives included in the semi-annual reports.
Hold on. Aren't names and full case numbers redacted from the reports?
They are. But the bureau is worried, because the newly included data would be such a small subset, that it would be far easier to match up that data to the narratives and then to actual cops. If the bureau provides that information willingly, it says, it could open itself up to grievances or legal action claiming it's releasing the data to embarrass officers. The city's labor contracts with the cops include language that say punishment for cops can't be handed out or publicized in a humiliating fashion.
But has the Mercury or any other news organization ever connected the Police Review Board reports to any actual cops?
We have, and so have others. But only because those cases, and the cops attached to them, had already been well-publicized. Often times, in high-profile uses of force, or in police shootings, the details in the reports match news accounts so well that it's easy to know who's being reviewed.
The Oregonian knew before the January review board reports that former Captain Todd Wyatt had been demoted, presumably over a road-rage scandal that went to trial. By matching the road rage details to his entry in the PRB reports, the paper also noticed he had been grilled over accusations of dishonesty and harassment and that the board actually wanted him fired.
That's also how I was able to match up Nice's proposed discipline against what the chief actually gave him. Other identifiable cops include former PPA president Scott Westerman. But I never figured out, not yet at least, the two other cops Reese saved.
But since that identifying information comes from the reports, and the bureau already releases the reports with no fuss (thanks to city code), how would the data about actual discipline be any more potentially embarrassing?
That's a good question. And it seems to be this: The PRB findings are mere recommendations. The chief doesn't have to follow them. The chief's discipline, in which he takes in outside information and brings cops in for a "mitigation" hearing, actually goes into a cop's personnel file and thus becomes the basis of a potential grievance. So it's a bit trickier, legally.
You mentioned something about the DA. Why?
District Attorney Rod Underhill is the first step in adjudicating disputes between public agencies and record seekers over things like denials or high fees. Underhill must test whether the bureau's concerns about personnel policy outweigh the state's default stance on records: that releasing them is generally in the public's best interest.
In this case, I would argue to Underhill that the perceived harm in releasing the data I've requested is clearly outweighed by the public good—if any harm exists at all. After all, the names are redacted and the only cases identified are already cases of high public interest and notoriety. We're not publicly outing rank-and-file cops making minor screw-ups.
It's conceivable the bureau already knows all this but is cautiously trying to seal off legal broadsides from the PPA during contract negotiations already stalled because of a federal civil rights case accusing the bureau of using excessive force against the mentally ill. As a practical matter, the bureau might not actually care about releasing the data, as it did previously, but would rather have the insulating cover of an order from the DA to do it.
Can't the mayor's office also make them compile the data again?
That's also a possibility. Hales' spokesman, Dana Haynes, said Hales would "likely" order the bureau to do that because the office, just as we did, found the data "useful" and a "helpful tool." But it's not clear that the bureau, based on the argument that the subset of new data is small, wouldn't hold it back anyway.
Is this what "transparency" looks like?
No. And that's why I like hearing that the Independent Police Review Division is considering code changes that would permanently enshrine the release of the data I've been seeking. Hopefully that happens before the next batch of reports, in January 2014.