.......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... ..........

Copyright © 2015 Albuquerque Journal

The proposed police reform agreement between the U.S. Justice Department and the city of Albuquerque has the potential to keep secret communications between the city and the court monitor who will oversee the implementation of the agreement – something city officials say they never intended.

Buried in the agreement on Page 95, which has been submitted to U.S. District Judge Robert Brack for his approval, is a little noticed paragraph that states: “The Monitor is not a state or local agency or an agent thereof, and accordingly, the records maintained by the Monitor or communications between the Monitor and the Parties shall not be deemed public records subject to public inspection.”

Since the city is one of the “Parties,” documents in the city’s possession normally would be subject to the state Inspection of Public Records Act.

ADVERTISEMENTSkip

................................................................

And that is a concern to open government advocates.

“APD and the Department of Justice can’t exempt the city from IPRA just by declaring their communications confidential,” said Greg Williams, president of the New Mexico Foundation for Open Government. “These communications are public records. Any provision in the settlement agreement that attempts to hide these communications would be unenforceable under IPRA.”

Rob Perry, the city’s chief administrative officer who was involved in settlement negotiations, acknowledged the language could be read as a blanket confidentiality provision.

“It is an issue we will certainly look at,” he said. “The city is subject to IPRA and our intention is to be transparent.”

The DOJ, when asked about the provision, provided the Journal with this response: “The Settlement Agreement does not override State law and the City must continue to comply with IPRA. The provision you cite is designed to make clear that the Monitor is an agent of the federal Court and not the City for IPRA purposes.”

Police consent decrees reviewed by the Journal involving the Detroit, Los Angeles, New Orleans and Washington, D.C., police departments don’t contain language making communications between the monitor and the parties secret.

The APD agreement was signed last fall by city and federal officials and hailed as a new chapter for the Albuquerque Police Department. The DOJ concluded last spring that the department had a “pattern and practice” of the unconstitutional use of force and deadly force based on an investigation of three years of APD fatal shootings and use-of-force incidents.

The investigation also concluded there were systemic deficiencies in policies, training, supervision and oversight that contributed to the unreasonable use of force by officers.

Officials promised the agreement would focus on open communication with the community, and it appears to require extensive communication between the monitor and APD that would be considered confidential under the agreement.

It requires the court’s monitor to audit the department’s compliance with all parts of the agreement and to make sure the city meets the goals laid out.

The issue raised by the secrecy provision in the agreement is whether the public and media will have access to information in the possession of APD and City Hall – subject to the exceptions allowed under IPRA.

The monitor is required to make periodic reports to the court that are public under the agreement.

Brack will hear objections to the agreement next week.

“It is imperative that the city and the department make this process as open as possible,” Williams said. “One of the main purposes of this agreement is to increase transparency and accountability regarding APD’s use of force. If the public is going to have any confidence in the outcome, the process needs to be open. That includes the documents provided to and from the city.”

Other agreements between the DOJ and local police departments have taken state public records laws into consideration. None mentions keeping communications between a court monitor and local officials secret.

The federal court consent decree governing changes within the Los Angeles Police Department specifically deals with the California Public Records Act, requiring all parties to keep confidential all “non-public information” as defined by the state Public Records Act.

In Washington, D.C., and Detroit, the consent decrees were more concerned with the monitor not making otherwise confidential material public, such as documents protected by attorney-client privilege or personnel files and some criminal investigative files.

In Detroit, the agreement was concerned that it didn’t expand access allowed under state public records law.