Newspaper, town fight over records on police officer
September 13, 2005
In November 1995, a Carbondale police officer used excessive force against a resident.Little is known publicly about what happened, but the Valley Journal in Carbondale is trying to change that. The weekly newspaper, town officials and the lawyer for officer Jose Munoz are embroiled in a legal battle over the release of records that detail a complaint against the officer. The complaint was substantiated, and Munoz was disciplined.Town officials in March went to court to stop the file from being released, asking a judge to review the information and deem it to be private.The case pits the rights of the public to know what a police officer who receives a taxpayer-funded salary is doing while on duty against the rights of police to keep personnel files private.The Valley Journal first became interested in the 1995 incident when it arose during the trial of a Carbondale resident earlier this year. Munoz stopped Steve Horn in August 2004 for running a stop sign. Horn got out of his vehicle and approached Munoz to ask what the problem was. Munoz, according to an article in the Valley Journal, felt threatened and said Horn was acting erratically. He stunned Horn six times with a Taser and arrested him.Accused of resisting arrest, impeding a police officer and the traffic infraction, Horn was found guilty only on the last charge.Even though the trial was over months ago, the Valley Journal has continued its attempt to get the records released, perhaps because Horn said he intended to sue the town for injuries he allegedly suffered in the traffic stop. That lawsuit has yet to be filed, Horn’s lawyer said.
Editor John Stroud declined comment about why the paper continues to pursue Munoz’s files. District Judge James Boyd will review the matter Sept. 30.Munoz and the lawyers representing the newspaper are both confident of Boyd ruling their way.The argument of Munoz’s attorney, Marc Colin, is essentially that the files are “highly personal and confidential,” that he was given promises of confidentiality when he made his statement during the internal investigation and that it would hurt his reputation in Carbondale.Steven Zansberg, the Valley Journal’s lawyer, said an officer’s on-duty tasks are hardly personal and private.”These are public records, essentially, and these defenses to disclosure have no merit,” said Zansberg, whose firm also represents The Aspen Times and newspapers around the state. The same company owns the Times and the Valley Journal.The fight to see documents from a recalcitrant police department is hardly new, Zansberg said.”We have fought this fight in numerous jurisdictions, and each time we have fought it on behalf of the ACLU or our media clients, we have won, and the file has been required to be disclosed,” he said. “I liken it to ‘Groundhog Day,’ frankly.”
He anticipated receiving a similar ruling in this case. Zansberg said police unions in Colorado are asserting the right to officer privacy in everything that relates to on-the-job duties.”We think that that’s improper, and we’ll definitely ask the court to award us our attorneys’ fees when it decides that some of the files must be released,” he said.Asked whether residents should be able to know what a police officer is doing while on duty, Colin said, “There’s a lot of law that addresses that specific issue. To a certain degree the public does have the right to know certain information and not other information.”The law tries to balance public interest in government operations against the ability of the government to conduct those operations, Colin said.When Munoz’s history first arose during the Horn trial, Municipal Judge John Collins “inspected some of the records and conducted a balancing of the interests and said in that case, the criminal defendant was entitled to a limited amount of information regarding what had happened six years ago,” he said.The further away in time an event becomes, the less force the public interest has, Colin added.At issue is whether the substantiated complaint against Munoz belongs in his personnel file. Under the Colorado Open Records Act, contents of personnel files are personal and confidential, Colin said.
“To a limited degree, the issue is the disciplinary record itself,” he said. “But the broader issue is the internal investigative file, or the records of the internal affairs investigation, that ultimately led to the disciplinary decision.”The town, including Police Chief Gene Schilling, also have reasons for wanting to keep the records private, said Colin, whose Denver law firm represents nearly 70 police departments in Colorado.”The chief would argue that if you promise people confidentiality and then you publish the results of an investigation later on, that’s going to have a chilling effect on the ability of the chief and the department to conduct these investigations,” he said. “The more public you make investigations, the more unlikely it is that you’re going to get complete candor from witnesses.”Zansberg said that argument has been addressed and rejected repeatedly, not only in Colorado but in other jurisdictions. He said he will relate to the judge how he sent a letter to police departments in Palm Beach, Fla., and Cleveland requesting internal affairs files.Those jurisdictions mailed a series of internal records to him “without any questions asked, without any need to go to a court and spend all kinds of money and time fighting to see these things,” Zansberg said.”[Munoz] is going to have to convince the court that [those] police departments are incapable of conducting adequate internal affairs investigations because they declare their internal affairs to be public record.”The judge could decide to take a look at the files to see if anything is public record. Or he could order the complaint against Munoz be released or sealed.Chad Abraham’s e-mail address is firstname.lastname@example.org