This story was updated at 11:10 a.m. on Sept. 13, 2022, to include additional information
The office of Montgomery County Executive Marc Elrich and the county’s police union are defending an agreement signed this year that allows police officers to review the public’s requests for their personnel files, saying it is necessary to help prevent mistakes such as the release of personal information.
In 2021, the Maryland General Assembly passed Anton’s Law, which is designed to increase transparency in police departments by making sure that the internal affairs records of officers are made public. Previously, the records had been considered personnel records and were exempt from disclosure under the Maryland Public Information Act (MPIA). Anton’s Law took effect Oct. 1, 2021.
A memorandum of agreement (MOA) between the county government and the Fraternal Order of Police (FOP) Lodge 35, the police union, signed in response to the new state law is facing criticism that it allows the union to hold up the release of records and violates the spirit of the transparency law.
The agreement was signed by union President Lee Holland on Jan. 21 and by Elrich on Feb. 1.
According to a copy of the agreement, obtained by Bethesda Beat:
- A police department must notify the officer and the union within two business days of someone making a public information act request for an officer’s internal affairs file.
- All information requests for a union member’s file will be kept in a log that the union may inspect.
- At least 10 business days before the records are released, the department is to give the officer and union a copy of the records. If the release includes body-worn camera video or mobile car video, the officer may have access to it.
- The officer or the union may file an objection with the department to the release of the records. The objection must be filed within 10 business days of receiving the records.
- If an objection is filed, the department will hold the records until there is a ruling by a judge in the matter.
County Council Member Hans Riemer told Bethesda Beat on Thursday that the council wasn’t notified of the agreement between the union and the county at the time it was signed and he first learned of it after reading a Washington Post story about it last week.
“The problem is that the FOP is going to be able to use this to tie up everything in the court system,” he said. “And Marc Elrich, by signing this agreement, has undermined the intent of the state law to promote transparency around access to these records. And it has the potential for the FOP to basically tie up every case.”
Elrich told Bethesda Beat on Monday evening that the labor unions and the county negotiate agreements frequently, and the approval of the council is not required for those agreements.
“The unions and the county government have made agreements on side issues for years without anything ever going to the council. And this, to me, seemed really trivial because you’re not taking away the basic right to require the reporting of incidents,” he said.
Elrich said Anton’s Law specifically prohibits personal information and technical information about officers from being disclosed, and the scope of the agreement with the FOP is limited to those two elements.
“Nobody’s debating the right to release the personnel files. The issue is whether those things include things that are personal, which are not to be released, or technical, which are not to be released. And that’s the only thing they can object to, which is the presence of something that is either personal or technical,” he said.
Elrich said there have been between 10 and 15 files of officers that have been released since Anton’s Law took effect.
“There was only one case where something was found that was technical where everybody agreed it shouldn’t be [included] and we took it out and released it,” he said.
Elrich did not know the details of the one case that was challenged.
The Post reported on a lawsuit filed by a county police officer and the union to prevent the disclosure of records about that officer. That case involves records about a complaint made previously against police Officer John J. Gloss. A woman told The Post that she thought Gloss handled a traffic stop inappropriately more than a decade ago and she later received a letter stating that he would be sanctioned. The woman wanted to find out what had happened with her complaint, according to the Post.
Elrich said on Monday that the case involving Gloss’s complaint is entirely separate from the FOP’s agreement with the county because that lawsuit is challenging the intent of Anton’s Law itself.
“His lawsuit isn’t about our agreement. He fundamentally doesn’t agree with the law, and they believe there are conflicting things in the law… . He’s not suing based on this,” he said.
The lawsuit filed by the FOP, obtained by Bethesda Beat, makes reference to the FOP’s agreement with the county, stating that “the parties’ MOA allows an officer to promptly raise any issue with this court in order to obtain a ruling before an improper production is made that could cause irreversible and irreparable harm to the officer.”
The lawsuit states that Gloss, referred to in court documents as “Officer John Doe,” had multiple allegations made against him nearly two decades ago that were ultimately not substantiated, and an investigation cleared him of any wrongdoing.
The lawsuit states that some records from Gloss’s file include allegations of technical infractions, which are exempt from disclosure. However, it also states more broadly that because the officer’s records include allegations of wrongdoing that were not sustained, they could cause Gloss “substantial harm” and cause an invasion of privacy if released to the public.
Gloss’s lawsuit names the FOP as the plaintiff and the county as the defendant.
Elrich said the public needs to realize that Gloss’s lawsuit is entirely independent from the agreement that the county executive’s office made with the FOP. For the county’s part, they are complying with the law, he said.
“We’re releasing the information. Even when [the officers] asked for redactions, we all got it done in the time it needed to be done in, so that hasn’t been a problem,” he said. “And the only problem is this one person [Gloss] objects to the fundamentals, and it’s being conflated with the agreement we made, which is just not true.”
Holland told Bethesda Beat this week that the agreement came about after the union sat down with Elrich to discuss the implementation of the new law shortly after it took effect last year.
Members of the union were concerned that they wouldn’t know what type of information was being requested, Holland said.
“It wasn’t one particular case. It was just, hey, this is a whole new process and we have to work together on how this is going to be implemented … and make sure that information is protected and make sure people know when their files are gonna be released, how it’s gonna be released, when it’s gonna be released,” he said. “Because you don’t know what the person’s intending to do with the information once they get it on the other end.”
Holland said Anton’s Law protects family and medical information, addresses and Social Security numbers, among other things. The agreement ensures that officers have an opportunity to make sure that information is redacted and that no mistakes are made, Holland said.
Holland said the union is also concerned about the erroneous release of records regarding technical infractions by officers – those that don’t involve an officer’s conduct toward the public. Those records cannot be released under Anton’s Law.
“The problem is local jurisdictions are able to determine what a technical infraction is – not an officer,” he said.
An example, Holland said, is rules governing the use of body-worn cameras. Not turning on a body-worn camera at a specific time could be considered a technical infraction by one county’s police department, but not another.
If an officer files an objection to a records release, called a “reverse MPIA,” the matter goes to court and a judge rules on what material should be released, Holland said.
“If there’s a reason for an objection … we notify the department saying we intend to file a reverse MPIA and we submit it to the court within the time of the agreement,” he said.
Elrich’s spokesman Scott Peterson released a statement to Bethesda Beat on Thursday evening stating that the agreement “reduces the risk of mistakes or errors” in the release of information following the passage of Anton’s Law.
“This agreement does not allow the F.O.P. to stop or interfere with any information that is to be provided to the public under the statutes of the state law,” he said. “However, once information is released, it cannot be taken back and mistakes in [the] disclosing of information that should not be disclosed could do harm to an individual and could place the county in legal jeopardy.”
Peterson said the county is complying with the new law, which Elrich supported when it passed last year.
“It is important to note that since the law went into effect last year, Montgomery County has been releasing police records; the County’s agreement with the F.O.P. has not impeded the release of information to the requestor,” he wrote.
“It is challenging the state law and is not blocking the release of records of other officers,” he wrote.
Holland said that since Anton’s Law took effect, there have been more than 1,000 requests for the internal affairs files of FOP members. The union has been notified about 15 files that have been released to the public, he said.
“In only one instance has there been a challenge,” he said.
Holland declined to comment further on the records that were challenged.
Robert Landau of the Silver Spring Justice Coalition, told Bethesda Beat on Monday evening that in the fall of 2021, after Anton’s Law took effect, the group filed eight public information requests for personnel files of officers that had used deadly force in the county.
Initially police told them it would cost $100,000 to obtain the files, Landau said. Police later told them the request needed to be run by the FOP, he said.
“We said ‘What? What does the FOP have to do with this?’ And they said there’s an agreement between the county and the FOP that we give them 10 business days to look at the documents, and it gives them an opportunity to object,” he said.
Landau said the group asked to see the agreement between the FOP and the county, but it was a month or two before the police produced it. Eventually, they got the files, too.
“We did eventually get what we negotiated for, and they did waive the fees eventually. But it seemed to us like it was kind of a ploy,” he said.
Riemer said he worries that a court challenge to a records release could mean it could take years to resolve a case.
“That’s my concern about this. That this information is never gonna see the light of day now because they’ll use the courts to continue to withhold or prevent information from being released,” he said.
Holland noted that legal challenges to police records releases could still happen before the MOA was signed.
“This process is supposed to actually reduce the legal challenges,” he said. “There would be a lot more legal challenges if my officers didn’t know what was being released. Not knowing what’s redacted, the only thing they could do is to go to court and say ‘stop it.’ And then we’d be flooding the court system with these things. We’re trying not to do that.”
Asked whether he thinks the MOA promotes transparency, Holland said it does because officers need to be able to see what information about them is being requested and released.
“I think there needs to be transparency for everyone involved,” he said. “If an officer never got to see what’s being [requested] about them, they would never know what’s being released about them. The officer has the right to their internal affairs files, to review it when they need to, but how do they know if the department worked out an agreement to give half their file, their whole file? They’d have to take it under assumption, without knowing, that [the department] is releasing their entire file.”
Dan Schere can be reached at email@example.com