New Research Reveals How Law Enforcement Policies Restrict Transparency and Accountability

May 24, 2022

By Hannah Bassett

 Originally published by Open The Government (now Project on Government Oversight)

After a Minneapolis Police Department officer murdered George Floyd in May 2020, questions quickly arose about discrepancies between the police department’s incident report and eyewitness accounts. Bystander video and subsequent reporting made clear that the department’s initial description of Floyd’s death, “Man Dies After Medical Incident During Police Interaction,” grossly misrepresented officers’ use of excessive force, which caused Floyd to stop breathing. Now, two years after Floyd’s death, new research on law enforcement agencies across the country—including the Minneapolis Police Department—sheds light on the internal policies that contribute to agencies’ failures to release accurate, timely information, and the damaging effects those policies have on our democracy.

A recent article published in the Akron Law Review, authored by Frank LoMonte and Jessica Terkovich of the University of Florida’s Brechner Center for Freedom of Information, analyzed the media relations policies of 75 police and sheriff departments across the country. Using legal and textual analyses, the researchers found that the majority of the policies contain language that pose serious barriers to transparency and accountability. The article supports and expands upon findings from Open The Government’s own research over the past year examining 19 law enforcement agencies’ media policies and the public information officers who enforce them.

To a limited extent, reservations about releasing law enforcement activity is reasonable: disclosing too much information to the public could interfere with investigations, expose confidential information or jeopardize safety. Public records laws recognize this, with exemptions in the federal Freedom of Information Act and state-level equivalents to keep sensitive law enforcement information from reaching the public.

As the courts have repeatedly ruled, however, there are limits to what law enforcement can withhold, particularly when it comes to restrictions on what and how personnel can communicate with the media. Gag rules stifle free speech rights and whistleblowing within departments, and they also have negative implications outside of departments. When law enforcement personnel are not allowed to speak to journalists, journalists are unable to report fully on law enforcement activity and disinclined to highlight the limitations they face in their reporting, and public is left in the dark, contributing to declining public confidence in law enforcement.

In the best of circumstances, media relations policies empower law enforcement to share accurate, timely information with the media and the public. Several of the policies obtained by Open The Government proclaim to do just that. The California Highway Patrol’s media policy, for example, states that “establishing and maintaining good relations with the media is the single most important part of the Department’s media relations activities.” Highway Patrol personnel are “to cooperate with the news media in an open and honest manner and to provide information whenever allowed by current laws.” Similarly, the Illinois State Police’s policy acknowledges the public’s right to know and states that the department “will cooperate fully and impartially to provide factual information relating to matters within the Department’s jurisdiction.” In Charlotte, North Carolina, the city’s police department “recognizes that a spirit of cooperation and openness is an essential component in fostering the trust and support of the community it serves.”

Unfortunately, policies’ spirit of transparency is not always borne out in agencies’ actions. According to a 2016 survey of crime reporters by the Society of Professional Journalists, more than half of survey respondents said that a public information officer has prevented an interview with other law enforcement personnel from happening in a timely manner. A separate 2016 survey of law enforcement public information officers, also conducted by the Society of Professional Journalists, found that roughly half of respondents “will not hesitate” to ban reporters or outlets from interviews if they feel there have been problems with previous reporting.

Exactly what constitutes a “problem” could be as minor as publishing an article critical of a department. Policies obtained by Open The Government found that several law enforcement agencies encouraged personnel to prioritize image when releasing information to the media. “The objective of media relations,” according to the California Highway Patrol media policy, “is to generate a positive image of the Department.” If information sought by the media could portray the Highway Patrol in a negative light, a public information officer could reasonably conclude they had permission to block interviews, given that reporting would go against one of the policy’s main objectives. Within the Charlotte Police Department, public information officers are similarly instructed to “proactively pitch, coordinate, develop and promote positive news stories.”

Law enforcement agencies have every right to share stories that uplift agencies’ work, but doing so without practices that allow for critical reporting and without sufficient protections for personnel’s free speech—including whistleblowing—leaves public information officers with the ability to promote false narratives, much like the Minneapolis Police Department did in its initial incident report following Floyd’s murder and as numerous other departments have done in the years since.

Recent events and recently uncovered policies show that agencies’ repressive policies go much further than prioritizing image over truth. The Brechner Center’s analysis details exactly how specific language in media policies stands in opposition to departments’ self-proclaimed commitments to transparency. Of the 75 media relations policies that the Brechner Center reviewed (after requesting policies from the 50 largest police departments and 50 largest sheriff departments across the country), researchers found that more than half of those policies include language that “renders them constitutionally suspect” due to prior restraints, content- or context-specific restrictions, or contradictory guidance. None of the policies include language that identifies a way for personnel to challenge or appeal these restrictions.

Several of the policies obtained by Open The Government that were not captured in the Brechner Center’s research include similarly concerning language. The California Highway Patrol, for example, despite its aspirations for openness, requires personnel to have all materials “cleared through [Community Outreach and Media Relations] prior to dissemination.” The policy goes on to state that “personnel shall not discuss, with the news media, matters of a politically sensitive nature without approval from [Community Outreach and Media Relations].” Similarly, the Illinois State Police’s media policy says that “employees will not initiate any written or oral contact with the media concerning [Illinois State Police] activities without prior approval of the appropriate Colonel, Lieutenant Colonel, District/Zone Commander, Lab Director, or designee unless such contact is consistent with this directive.” In the Atlanta Police Department, personnel are not allowed to “grant interviews or answer questions from media representatives regarding any work-related activities or incidents involving the Atlantic Police Department without prior approval from the Chief of Police, or the [Public Affairs Unit] except as provided for on the initial scene of an incident.”

This kind of language, which prevents law enforcement personnel from sharing information with a reporter or member of the public, is “rarely found constitutional when challenged,” according to the Akron Law Review article. “There is no support for the proposition that a government employer may forbid employees from sharing their expertise with the press and public, require supervisory approval as a precondition for speaking, or selectively prohibit entire categories of speech on the basis of viewpoint. And there is nothing unique about the setting of a public safety agency that changes this well-established rule.” Nevertheless, similar language continues to be a part of department policies across the country.

Transparency is an essential counterbalance to the power that law enforcement agencies wield in the communities they serve. Bringing law enforcement agencies’ media policies to light is an essential first step toward increased awareness about the effect of gag rules on our society. Now it is up to law enforcement agencies, policy makers and community members to reform these policies to ensure transparency and accountability for law enforcement agencies across the country.