The case involves the rights of citizens to review police internal affairs investigation files to see how police are policing themselves.This is now the fourth time this has been before a judge and the fourth time the city has lost.
For years, the city has argued that the public has no right to review internal affairs files. The city has cited city law, saying it prohibits the release of the files.Every judge that has heard the city's arguments has rejected them, saying state law is clear: The public has the right to look at the files. Judge Catherine Lemon's ruling Wednesday was no different. The case Lemon heard evolved out of what became widely known as the "spy files" case. In 2002, Steve Nash, an outspoken political activist and critic of the Denver Police Department, learned police had been spying on him and others, apparently for nothing more than exercising their first amendment rights.Police department internal investigations were launched, resulting in policy changes at the department and discipline for officers. When Nash asked to see the results of the internal affairs investigations, the police department responded with its standard reply: That releasing them would be "contrary to the public interest."As three judges have done before her, Judge Lemon ruled that the police department was wrong, writing that "Internal affairs secrecy contributes to the 'code of silence' or 'blue wall', by creating the expectation that things will be kept in house and away from objective outsiders.""Transparency also enhances public confidence in the police department," the judge continued.The judge also ruled that there is "no legal justification" for the department's blanket policy of denying every public records request for internal affairs files. She wrote: "Furthermore, one apparent purpose for this conduct, and the inevitable effect of it, is to impose upon every citizen who seeks to exercise his or her rights under the CJRA the many burdens of bringing suit against the government, including the cost of litigating.""I thought that was a really important point," said John Culver, an attorney working on behalf of the ACLU, who represented Steve and Vicki Nash in the case. "The whole reason the state has its open records laws is to make it easy for citizens to get information about the way government functions," Culver said.City attorney Cole Finegan said the city is still reviewing the ruling. Although he wouldn't comment on any plans for appeal Wednesday, in previous interviews the city has indicated its desire to get this case before an appeals court. The city says an appeals court decision, one way or the other, would determine if the laws on Denver's books prohibiting disclosure of the files are valid or not. "The silver lining in any ruling is that we get some definition," Finegan said. "As we've said repeatedly, as Mayor Hickenlooper has said and I've said, what we really want to do is clarify what the law is in Colorado, and once we have a clarification of the law we'll apply it and we'll abide by it."As it did in a similar ruling last year, the judge ruled that the decision not to abide by state open records laws was "arbitrary and capricious", and ordered the city to pay Nash's attorneys fees. That could take up to $40,000 out of taxpayers' pockets.If the case does end up in an appeals court ruling, it could impact how every other police agency around the state handles requests for internal affairs files.
