Detroit redacts police misconduct records it once fully disclosed

The change was made shortly after the city’s new corporation counsel was appointed to lead the law department, which fulfills public records request from news outlets.

“How can we deal with bad cops if we don’t know?” said Willie Bell, a longtime Detroit police commissioner in response to the department’s new policy.

“We should be familiar and exposed to the entire history of that officer on the police department. There should not be any barriers to that.”

Beginning in May, the department began blacking out disciplinary cases older than four years old. Citing an employment law from 1978, city attorneys said it allows for withholding disciplinary records of officers that are more than four years old.

But multiple employment attorneys consulted say the law—the Bullard-Plawecki Employee Right to Know Act—is not intended to limit records available through the Freedom of Information Act. The law says it should not “diminish a right of access to records” provided under FOIA.

For more than a year, hundreds of public records requests were filed with the city of Detroit to gain access to disciplinary records for scores of officers. Those records helped report stories on some of Detroit’s most troubled cops.

Disciplinary records alone helped reveal officers accused of abusing women, of lying and using racist slurs or racking up 10 different suspensions throughout their career.

It also forced the city to identify 128 of their own officers as “high risk.”

The change in course came after Mayor Mike Duggan appointed a new corporation counsel—former deputy mayor Conrad Mallett—to lead the city’s law department.

After Mallett’s appointment in April, the city says it changed policy the following month. Mallett said the change in policy is “nothing nefarious.”

“We had a client who asked us to examine, again, the relationship between the FOIA statute and Bullard-Plawecki,” Mallett said, not naming the client, “and frankly, came to a different conclusion as to how the two statutes should be read together.”

The city’s change in policy comes as it offers to settle a slew of lawsuits alleging police brutality with Detroit Will Breathe. This group has led protests against police misconduct starting in the summer of 2020.

“If you’re a public official,” said Tristan Taylor, a leader of Detroit Will Breathe, “conduct that you perform should be under scrutiny. That’s part of the deal of being a public official.”
Enacted in 1978, the Bullard-Plawecki Act governs how employees can gain access to their own personnel files, and it does say that discipline older than four years should not be shared.

Mallett says you don’t need to see more than that to know if an officer is good or bad.

“I don’t think that penalizing someone for something that they did…more than four years ago is going to complicate any decision maker’s ability to determine who this person is,” Mallett said.

“We’re not asking to penalize them again for something that happened four years ago,” said Channel 7’s Ross Jones. “We’re just asking to see what they did to warrant a penalty four years ago.”

Mallett said the disagreement came down to a “policy discussion.”

But the problem with the city’s position, according to multiple attorneys who were contacted, is that the law the city is citing has an exemption for public records requests.

“I think it’s quite clear that the city is wrong here,” said attorney Joey Niskar. “I don’t think it’s a close call.”

Specifically, Niskar points to section 423.510 of the law that says it “shall not be construed to diminish a right of access to records” and cites the Michigan Freedom of Information Act.

“These are government officials and these are police officers,” Niskar said. “They are sworn to uphold the law and to serve and protect. They wield vast power, and with that power comes vast responsibility and accountability.”

Channel 7 is appealing the city’s decision, asking the Mayor to supply the complete disciplinary records the city did for so long. In the end, it is likely only a judge could force the city to do so.

“This is the opportunity and moment to be champions of transparency,” Taylor said, “and do the right thing that people have been demanding for years.”