Publication Date

2022

Abstract

Every state has a set of transparency statutes that bind state and local governments. In theory, these statutes apply with equal force to every agency. Yet, in practice, law enforcement agencies enjoy a wide variety of unique secrecy protections denied to other government entities. Legislators write police-specific exemptions into public records laws. Judges develop procedural approaches that they apply exclusively to police and prosecutorial records. Police departments claim special secrecy protections from the bottom up. This Article maps the legal infrastructure of police-records secrecy. It draws upon the text of the public records statutes in all fifty states, along with case law and public records datasets, to illuminate the ways that judges, legislators, and police officers use transparency statutes to shield law enforcement agencies from public view. It argues that this robust web of police secrecy protections operates as a kind of police secrecy exceptionalism, analogous in some ways to the exceptional protections granted to national security secrets in the federal context. The Article then examines the doctrinal and policy-oriented underpinnings of this exceptional treatment, finding that these arguments generally fall into one of three buckets: protection against circumvention of the law, protection of citizen or police officer privacy, and preservation of the effectiveness or efficiency of policing. It concludes that none of these defenses justify the extraordinary informational protections currently extended to law enforcement agencies. Moreover, these secrecy protections impose substantial harms. By excavating these overlooked mechanisms of police secrecy, the Article illuminates new avenues of legal reform.

Document Type

Article

Publication Title

Columbia Law Review

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