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February 18, 2019

Peoples Bank FOP Members

Action Center

Updated On: Apr 30, 2018

We need your help in defeating legislation being promoted and pushed by the ACLU that will impact your right to privacy on CORA requests and increase your exposure to civil action. HB18-1404 “Peace Officer Internal Investigation Open Records” seeks to strip all Colorado Peace Officers of their expectation of non-disclosure & confidentiality.  The vote will be taken on the House floor on this Tuesday morning (5/1/18).  We need all Colorado Law Enforcement officers and their family and friends to contact their State House Representative about their vote on this damaging bill!!!!

Make that phone call now. Leave a voice-mail and/or send an email to your representative. Call and demand a NO VOTE on HB18-1404 "Internal Affairs Disclosures" CONTACT INFO is listed below.

This is an election year for the Colorado Assembly. If this bill passes the Colorado FOP will let all of you know via post the names of each legislator who voted for this bill or against it. We do so for consideration of requested political endorsements, contributions and your vote consideration this fall when voting for your representative.

Currently, there is a balancing test that provides a custodian of records and ultimately the Court the ability to balance a peace officer’s right to privacy against a compelling state interest. This bill seeks to eliminate one side of the scale such that it will always be tipped in favor of disclosure to the detriment of a peace officer’s right to privacy. Between now and 10:00 AM Monday Morning April 30th we are asking you use the link below to call your State Representative and leave a message demanding a NO VOTE on House Bill 18-1404!!!!!

Follow this link to your reps contact info:

If you are unsure of your district then also use this link:

There are already procedures in place that allow the public to obtain internal affairs files while allowing the safety interests of peace officers, their families, victims of crimes, and the community at large to be considered on a case by case basis. Under current law in Colorado:

• Colorado and federal case law require the demonstration of a compelling state interest prior to requiring the production of personal and internal affairs records.

• The Colorado Supreme Court, in Martinelli¸ acknowledged the right to privacy. The Court, in Martinelli, laid out a three-part test for courts to utilize when the right to confidentiality is invoked to prevent disclosure of personal materials or information maintained by a police department:

a. Does the party seeking to come within the protection of the right to confidentiality have a legitimate expectation that the materials or information will not be disclosed?

b. Is disclosure nonetheless required to serve a compelling state interest?

c. If so, will the necessary disclosure occur in that manner which is least intrusive with respect to the right to confidentiality? Martinelli, 612 P.2d at 1091.

• Police officers have a legitimate expectation of privacy in any materials or information that may exist within his or her personnel and internal affairs file. As part of any non-criminal departmental internal investigations, officers are required to review and sign what is known as a Garrity advisement. See Garrity v. New Jersey, 385 U.S. 493 (1967). Typically, most agencies’ Garrity Advisement provides that “[t]he statement shall be confidential and neither the statement nor any information contained therein, nor answers to questions shall be disclosed.”

• The expectation of nondisclosure is reinforced by the Colorado Open Records Act (CORA), C.R.S. § 24-72-204(2)(a)(I) and (3)(a)(II) and the Colorado Criminal Justice Records Act (CCJRA), C.R.S. § 24-72-305(5).

• Internal Affairs case files are criminal justice records, the disclosure of which is subject to the provisions of the Colorado Criminal Justice Records Act (CCJRA) sections 24-72-301, et. seq. C.R.S. and appropriate case law. Except for records of “official actions,” and records where disclosure is prohibited by statute or court order, the disclosure of criminal justice records is discretionary and can be denied where the custodian believes disclosure would be contrary to the public interest.

• An officer has at least a limited expectation of nondisclosure and confidentiality related to any internal affairs records, if any, maintained by the police department. See Am. Civil Liberties Union of Colorado v. Whitman, 159 P.3d 707, 711 (Colo. App. 2006).

• A compelling state interest can be seeking proof to sustain a civil claim against an officer or the officer’s department, to defend a charge of assaulting a police officer, or to ascertain the truth. See Martinelli¸612 P.2d at 1083; Walker, 666 P.2d at 122; Lichtenstein, 660 F.2d at 436.

• There is already a balanced system in place to manage requests for internal affairs files. ensuring that there is transparency as it concerns the conduct of a peace officer is important. However, peace officers also have a privacy interest.

• Pursuant to Harris v. Denver Post, 123 P. 3d 116 (Colo. 2005), there are currently five (5) factors that are used to determine whether a record should be released or withheld.

• This bill seeks to create a blanket policy relating to the release of internal affairs records rather than allowing for a case by case review prior to releasing very sensitive information.

• This bill eliminates the privacy rights of peace officers and fails to account for the impact on the lives of peace officer and their families when unbalanced disclosure of internal records is allowed.

The following organizations oppose HB18-1404 and urge you to maintain a balancing test as opposed to the total elimination of the privacy interests of peace officers:

• Colorado Fraternal Order of Police (FOP)

• Colorado Police Protective Association (CPPA)

• Denver Police Protective Association (DPPA)

• Colorado Association of Chiefs of Police (CACP)

• Colorado Springs Police Protective Association (CSPPA)

• County Sheriffs of Colorado

• Colorado Drug Investigators Association (CDIA)

• Colorado Municipal League (CML)

• Colorado District Attorneys’ Council (CDAC)

• Association of Colorado State Patrol Professionals

• Colorado Office of the Attorney General

PLEASE VOTE NO ON HB18-1404!!!!!!!


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