SPECIAL COMMENTARY: CRB Votes To Rescind Confidentiality Policy
by Dennis Reeves Cooper
The Citizen Review Board (CRB) did the right thing Monday night. The board voted unanimously to rescind its policy of keeping incoming complaints about police officers confidential.
As you may know, we here at Key West the Newspaper have been pushing the CRB for several months to change the policy, ever since we made a public records request for a copy of a complaint last November and that request was refused. Our position is that, since the CRB is a City agency, incoming complaints are public records, as per the Florida Sunshine Law.
But just two weeks ago, CRB member Jane Rohrschneider said she felt so strongly that incoming complaints should be kept confidential that she threatened to resign if the policy were rescinded. So, she should have resigned after the vote Monday night, right? But she didn’t. Instead, she now says she will resign sometime in the future if the board does not eventually reinstate the confidentiality policy. We’re not making this up. That’s what she said.
The problem here, apparently, is that the majority of the board members do not seem to understand the law that relates to citizen complaints about police officers. Board member Tony Estenoz admitted to us a week ago that he does not understand the law. And Rohrschneider made the same admission during the meeting Monday night.
In fairness to the board members, however, they have not been getting much meaningful advice from the board attorney, Robert Cintron. In our opinion, he has been confusing them by telling them that, maybe, but he’s not really sure, the CRB may be, somehow, covered by the Policeman’s Bill of Rights Law. This law says that a complaint about a police officer received by a law enforcement agency (italics added) must be kept confidential for 45 days to give the agency time to investigate the complaint before it becomes a public record.
But, of course, the CRB is not a law enforcement agency. So it would seem clear to any reasonable person that the Policeman’s Bill of Rights does not apply to the CRB, right?
But Cintron argues that one would come to that conclusion only if the Policeman’s Bill of Rights Law is read “narrowly”. We are not making that up either!
It seems to us that the Sunshine Law clearly applies to complaints received by the CRB. And the ACLU agrees. In a letter to Attorney Cintron dated just last November 29, ACLU Attorney Rosalind Matos wrote: “The CRB’s current confidentiality policy not only is unconstitutional and contrary to the spirit of the Sunshine Law, In a Free Society, the Public’s Trust In an Official’s Reputation Is Won By Greater Transparency, Not the Silencing Of Criticism but it affects the CRB’s ability to conduct business.”
A couple of years ago, Cintron attempted to get the State Attorney General’s office to interpret the law for him. And the Attorney General did send down an opinion— but no one who has seen that opinion can understand it. Cintron himself calls it a non-opinion.
Having failed to get the Attorney General to ‘splain the law to him, Cintron then convinced the CRB to ask the court for a “declaratory judgment” to try to get a judge to decide, “Does the Policeman’s Bill of Rights Law apply to the CRB or not?” That effort aborted when the Attorney General’s office filed a motion to dismiss. That put the members of the CRB into the position of choosing to have a public fight with the Attorney General or capitulating. They capitulated.
As some of you may know, the Policeman’s Bill of Rights Law used to include a provision that made it a criminal offense for even the person making the complaint about a police officer to go public with any information about the complaint before the internal investigation was complete. But that was before the Eleventh District Court of Appeal, in the Cooper vs. Dillon case, ruled that the confidentiality provision in the law, as it related to complainants, was unconstitutional.
The Florida Attorney General didn’t want any part of that fight either. Two different Federal judges invited the Attorney General to show up to defend the law. He declined. Apparently, the law was so obviously unconstitutional that he concluded that there was really no defense he could present that would make any sense.
Last Monday night, CRB member Dr. Susan White distributed to the other board members some of the excepts from the Cooper vs. Dillon ruling— something Attorney Cintron had never bothered to do. Here are some of those excerpts:
• “In a free society, the public’s trust in an official’s reputation is won by greater transparency, not the silencing of criticism.”
• “The interest in protecting wrongfully accused officers from defamation is insufficient to sustain the statute.”
• “Our prior cases have firmly established that injury to official reputation is insufficient reason for repressing speech.”
• “The proper remedy for wrongfully accused officers is found in Florida’s libel laws . . . rather than a restriction which operates to suppress members of the press from reporting information of public concern.
Yet, trying to protect the reputations of police officers from possible frivolous complaints has been the stated reason that some CRB members have voted to keep incoming complaints confidential. It now seems clear that such a position has no basis in law.
So even though members of the board voted Monday night to rescind the confidentiality policy (perhaps to keep the State Attorney off their backs, since it is a criminal offense to knowingly violate the Sunshine Law), they also authorized Cintron to, once again, try to get a declaratory judgment— to try to get a judge to tell them what the law is. We will watch with interest as they try to slog through this judicial miasma once again.
But we have a question: Why does the CRB even have an attorney if he can’t explain the law to them? Cintron is apparently fearful that if the board has the nerve to actually obey the Sunshine Law by treating incoming complaints as public records, the PBA-- the Police Benevolent Association, the police union— may sue. Cintrol knows full well that the Miami CRB has treated incoming complaints as public records for years and has never been sued by the police union.
And if the police union does sue, so what? Such an action would put that organization in the ridiculous position of trying to somehow show that the CRB is a law enforment agency and is, therefore, subject to the Policeman’s Bill of Rights Law, a law that only applies to law enforcement agencies. Duh!
In the meantime, our support of the CRB has not waned. The mere existence of the CRB has changed police behavior. But our commitment of support does not mean that the CRB does not need some oversight from time to time.
The CRB was created by the people by referendum to operate independently. It does not report to the City Manager or the Mayor or to the City Commission. The CRB reports to the people.
And neither the Mayor nor the City Commission, nor even the CRB members themselves can change the amendment to the City Charter that created the CRB. That amendment can only be changed by a vote of the people.
And that amendment says that the CRB is subject to the Sunshine Law, not the Policeman’s Bill of Rights Law! And that is why we pushed so hard to try to convince the members of the CRB to rescind the policy of keeping incoming complaints secret.
That was not the intent of the citizens who worked so hard to get the CRB referendum on the ballot. And that was not the intent of the citizens who voted to approve it.
The CRB reports to the people. And the press is the watchdog for the people. It is the responsibility of the press to watch the CRB and to point out when we think the members of this board are getting off track. In trying to keep incoming citizen complaints about police officers confidential, we thought the CRB was off track and we said so. Board members got back on track Monday night.
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