New police reform law exempts officer disciplinary records database from public disclosure

Second measure signed by Gov. Wolf is aimed at ensuring mental health checks for officers

  • Ed Mahon

Ed Mahon / PA Post

Pennsylvania Governor Tom Wolf says two bills into law, making changes to certain aspects of law enforcement, on July 14, 2020.

A new law signed by Governor Tom Wolf will give Pennsylvania police departments greater access to disciplinary records for officers during the hiring process.

It creates a statewide database of separation records, including criminal charges filed against an officer, ethical or civil complaints, and binding and final disciplinary actions. Pennsylvania law enforcement agencies are required to search the database when hiring a new officer, and backers of the measure say it’s aimed at preventing deaths like the 2018 killing of 17-year-old Antwon Rose II in East Pittsburgh.

The goal is to give local agencies the ability to dig into job candidates’ backgrounds. Act 57 swiftly moved through the Pennsylvania General Assembly after nationwide protests over the death in Minneapolis of George Floyd while in police custody.

Multiple law enforcement agencies, including the Pennsylvania State Troopers Association and the Pennsylvania FOP, endorsed the the new law.

But the new law provides only limited access to that information for members of the public, specifically exempting most of the employment records in the database from the state’s Right-to-Know Law.

Some states provide more public access to police officer disciplinary records. In 2015, WNYC found that 12 states make disciplinary records generally available to the public, another 15 make those documents available in some situations, and 23, including Pennsylvania, make them confidential.

Last month, New Jersey’s governor and attorney general took action to make public more disciplinary information about police officers. New Jersey State Police said it would publish the name of all all state troopers, over the past 20 years, who received suspensions of more than 180 days or whose employment was terminated as a result of misconduct.

Meanwhile, the N.J. attorney general’s office said it would require all law enforcement agencies to publish the names of law enforcement officers who have been terminated, demoted, or suspended for more than five days.

Ed Mahon / PA Post

Attorney General Josh Shapiro speaks at a news conference on July 14, 2020.

Pennsylvania Attorney General Josh Shapiro, a Democrat, said he supports making more information about disciplinary records public, but he said Act 57 is focused on the hiring process. He said representatives for the public, whether it’s a police chief or mayor, will have access to disciplinary information under the law.

“They can then be held accountable by the public for the decision that they make,” Shapiro said at a bill signing news conference outside the Pennsylvania Commission on Crime and Delinquency office in  Harrisburg. “That’s where the transparency comes in. That’s where meaningful change comes.”

Act 57 does say some information should be disclosed to the broader public. If a law enforcement agency chooses to hire someone who has received final and binding discipline or been criminally convicted for any of 10 types of behavior, then the hiring agency is required to file a report “that indicates the … reasoning and rationale” for hiring the person.

The 10 types of behavior that require a hiring report are: excessive force, harassment, theft, discrimination, sexual abuse, sexual misconduct, domestic violence, coercion of a false confession, filing a false report and a judicial finding dishonest.

The law says those hiring reports, which must be submitted to the Municipal Police Officers’ Education and Training Commission, are “subject to disclosure” uner the Right-to-Know law.

State Rep. Chris Rabb (D-Philadelphia) said this level of  transparency will increase accountability and make it less likely that law enforcement agencies will hire people with red flags.

“In that hiring report, they’re going to have to explain why they ignored these red flags,” Rabb said.  “Now what happens when you ask a law enforcement agency, why did you hire this person? Do you think the chief of police wants to answer those questions?”

Still, even though the law says hiring reports are covered by the Right-to-Know Law, an attorney with the Pennsylvania News Media Association, Melissa Melewsky, said it’s not clear how much information agencies will release. She said agencies could still review the hiring reports and decide that parts shouldn’t be released because of existing exemptions in the open records law.

“There’s a lot to be figured out here when it’s put into practice,” Melewsky said.

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Erik Arneson, executive director of the state’s Office of Open Records, which hears appeals in open records cases for most agencies, said he thinks the law clearly requires agencies to release the full, unredacted hiring report.

“The legislative intent, it seems to me, is crystal clear,” Arneson said.

The law does not specify what details law enforcement agencies have to provide in those hiring reports. Arneson said he expects law enforcement agencies will vary across the state in how they handle these hiring reports, but he recommends they provide significant detail to explain the decision.

“If somebody decides to take a very minimalistic approach to putting together one of these reports, I think that’s just going to lead to more questions,” Arneson said. “In cases like this, experience has taught us that it is very smart to get out in front of it and do a full, credible job upfront, rather than having to backfill later on when questions emerge.”

Wolf on Tuesday also signed into law Act 59, which requires law enforcement officers to undergo mental health evaluations after using deadly force.

Several Democratic lawmakers said Wolf’s signing of the two bills represented a first but significant step for law enforcement reforms.

Senate Democrats, meanwhile, are waiting on the House Judiciary Committee to take action on a bill that would require police departments to adopt use-of-force policies that ban choke holds to detain someone, and a bill that would require law enforcement agencies submit information to state police about incidents when officers use force.

Tuesday’s signing came a little over a month after Black Democratic lawmakers protested on the Pa. House floor.

“For too often African-American legislators in the statehouse have been overlooked. Their issues have been overlooked,” said state Rep. Jason Dawkins (D-Philadelphia). “Their folks that they represent back home have been overlooked. And we decided no more. So we decided to do something about it.”

» PA Post is an independent newsroom covering policy and government in Pennsylvania. For more, go to www.papost.org.

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