POLICE SECRECY EXCEPTIONALISM - Columbia Law Review

Every state has a set of transparency statutes that bind state and local governments. In theory, these statutes apply with equal force to every agency. Yet, in practice, law enforcement agencies enjoy a wide variety of unique secrecy protections denied to other government entities. Legislators write police-specific exemptions into public records laws. Judges develop procedural approaches that they apply exclusively to police and prosecutorial records. Police departments claim special secrecy protections from the bottom up.

This Article maps the legal infrastructure of police-records secrecy. It draws upon the text of the public records statutes in all fifty states, along with case law and public records datasets, to illuminate the ways that judges, legislators, and police officers use transparency statutes to shield law enforcement agencies from public view. It argues that this robust web of police secrecy protections operates as a kind of police secrecy exceptionalism, analogous in some ways to the exceptional protections granted to national security secrets in the federal context.

The Article then examines the doctrinal and policy-oriented underpinnings of this exceptional treatment, finding that these arguments generally fall into one of three buckets: protection against circumvention of the law, protection of citizen or police officer privacy, and preservation of the effectiveness or efficiency of policing. It concludes that none of these defenses justify the extraordinary informational protections currently extended to law enforcement agencies. Moreover, these secrecy protections impose substantial harms. By excavating these overlooked mechanisms of police secrecy, the Article illuminates new avenues of legal reform.

The full text of this Article can be found by clicking the PDF link to the left.

* Associate Professor, S.J. Quinney College of Law, University of Utah. Many thanks to Jonathan Abel, RonNell Andersen Jones, Shima Baradaran Baughman, Hannah Bloch-Wehba, Albert Fox Cahn, Cynthia Conti-Cook, Yan Fang, Mailyn Fidler, Mark Goldberg, Kristin Hickman, James Hicks, Margaret Kwoka, John Langford, Ngozi Okidegbe, Maria Ponomarenko, Alan Rozenshtein, Miriam Seifter, Christopher Slobogin, Jacob Victor, Kate Weisburd, and Rebecca Wexler, as well as to participants in the 2022 Freedom of Expression Scholars Conference, the 2022 Privacy Law Scholars Conference, the 2022 Administrative Law New Scholarship Roundtable, and the 2022 Media Law and Policy Scholars’ Conference. A special thanks to Julia Ivory and Alexander McFarlin for providing excellent assistance with legal research, as well as Venkata Achalla, Emily Le, Tilak Misner, Cheng Ren, and Steven Yuan for their invaluable help obtaining and analyzing public records data. Thank you as well to the Berkeley Center for Law and Technology for supporting this research.

Introduction

In May of 2019, a transparency activist named Emma Best submitted freedom of information requests to sixty-eight state and local police departments for records relating to the hacker group Anonymous and the broader “hacktivist” movement. 1 MuckRock Data Spreadsheet, Emma Best Public Records Requests (2019) (on file with the Columbia Law Review) [hereinafter Best Public Records Requests 2019]. Best is the founder of a collective called Distributed Denial of Secrets, which posts government records obtained through leaks, hacks, and public records requests. Sam Thielman, A New Group Devoted to Transparency Is Exposing Secrets Wikileaks Chose to Keep, Colum. Journalism Rev. (Feb. 6, 2019), https://www.cjr.org/tow_center/emma-best-ddosecrets.php [https://perma.cc/V8VF-EWBZ]. She submitted these requests to agencies across three dozen states, mostly targeting state-level agencies or police departments in larger or mid-size cities like Houston, Denver, and Cleveland. 2 Best Public Records Requests 2019, supra note 1. Although the requests were virtually identical, 3 The requester used substantially the same form template for each request. For an example, see Letter from Emma Best to the L.A. Police Dep’t (Nov. 5, 2019), https://www.muckrock.com/foi/los-angeles-91/anonymous-general-hacktivists-2009-2018-los-angeles-police-department-74433/ [https://perma.cc/C2A9-F7AL]. they generated very different responses. One law enforcement agency charged $1.25 for the records, for example, while another asked for more than $130,000. 4 Compare Miami-Dade Police Department Invoice Summary (Aug. 1, 2019), https://cdn.muckrock.com/foia_files/2019/11/26/Invoice_INV19-P357425-1.pdf [https://perma.cc/625W-62VE] (charging $131,585 to the requester), with Seattle Police Department Invoice Summary (July 12, 2019), https://www.muckrock.com/foi/seattle-69/anonymous-general-hacktivists-2009-2018-seattle-police-department-74432/#file-826558 [https://perma.cc/7ZVV-7Y93] (charging $1.25 to the requester). Only around ten percent of the agencies turned over any records, and these productions mostly contained the same, six-page DHS memo about Anonymous and other associated hacker groups. 5 Eight agencies turned over records. Best Public Records Requests 2019, supra note 1. For a copy of the Homeland Security memo, see DHS, Nat’l Cybersecurity & Commc’ns Integration Ctr., Bulletin A-0010-NCCIC-160020110719, “Anonymous” and Associated Hacker Groups Continue to Be Successful Using Rudimentary Exploits to Attack Public and Private Organizations, https://www.muckrock.com/foi/oklahoma-city-341/anonymous-general-hacktivists-2009-2018-oklahoma-city-police-department-74486/#file-789705 [https://perma.cc/M4HP-AB44] (last visited Jan. 18, 2023). Roughly a third never responded at all. 6 Twenty-two agencies either never responded at all or sent an acknowledgment but never filled the request. Best Public Records Requests 2019, supra note 1. Eleven agencies had no responsive records. Id.

These requests also generated a substantial number of rejections. Roughly a quarter of the police departments—15 out of 68—told Best that the records were protected from disclosure by the state’s public records law. 7 Id. In doing so, they relied on a wide array of statutory protections. They claimed that the records were part of a criminal investigative file, 8 Id. (citing Va. Code Ann. § 2.2-3706(B)(1) (2022)). contained critical security infrastructure information, 9 Id. (citing Va. Code Ann. § 2.2-3705.2(14)). revealed nonroutine law enforcement procedures or techniques, 10 Id. (citing N.Y. Pub. Off. Law § 87(2)(e)(iv) (McKinney 2022)). related to network security, 11 Id. (citing Tex. Gov’t Code Ann. § 552.139 (West 2021)). exposed vulnerabilities to a terrorist attack, 12 Id. (citing Ind. Code Ann. § 5-14-3-4(b)(19) (West 2022)). could only be produced to a citizen of the state, 13 Id. (citing Tenn. Code Ann. § 10-7-503(a)(2)(A) (2022)). contained interagency deliberative material, 14 Id. (citing N.Y. Pub. Off. Law § 87(2)(g)(iii)). contained personal information from an individual “exercising rights secured by the Constitution,” 15 Id. (citing Okla. Stat. tit. 51, § 24A.14 (2022)). and would, if disclosed, constitute an unwarranted invasion of privacy; 16 Id. (citing N.Y. Pub. Off. Law § 87(2)(b)). and that the records themselves interfered with an ongoing law enforcement investigation, 17 Id.(citing Cal. Gov’t Code § 6254(f) (repealed 2023)). failed to describe the records clearly enough, 18 Id. (citing D.C. Code Mun. Regs. tit. 1, § 1-402.4 (LexisNexis 2022)). and imposed an unreasonable burden on the agency. 19 Id. (citing 5 Ill. Comp. Stat. Ann. 140/3(g) (West 2022)). One agency even invoked the notorious “Glomar” response, claiming that the requested material was so sensitive that the department could not reveal whether it had any responsive records at all. 20 Id. (citing Me. Rev. Stat. Ann. tit. 16, § 807 (repealed 2021)).

Every state has a set of transparency statutes that bind state and local agencies. 21 Christina Koningisor, Comparison of State Public Records Statutes Spreadsheet (last updated Sept. 1, 2022) (on file with the Columbia Law Review) [hereinafter Koningisor, Comparison of State Public Records Statutes]. State public records laws require that agencies turn over all requested records except those protected by an enumerated exemption. 22 See, e.g., Ark. Code Ann. § 25-19-105(a)(1)(A) (2022) (“Except as otherwise specifically provided by this section or by laws specifically enacted to provide otherwise, all public records shall be open to inspection and copying . . . .”). State open-meeting laws require that agencies permit the public to attend certain meetings. 23 See, e.g., N.Y. Pub. Off. Law § 103(a) (McKinney 2022) (“Every meeting of a public body shall be open to the general public . . . .”). And state open-data laws require that state and local agencies make certain types of data public. 24 See, e.g., Colo. Rev. Stat. § 24-21-116 (2022) (creating “a business intelligence center program in state law to streamline access to public data”). These are just some of the many legal requirements that compose the state and local statutory transparency law regime. 25 For a summary, see Open Government Guide, Reps. Comm. for Freedom of the Press, https://www.rcfp.org/open-government-guide/ [https://perma.cc/77YG-PMKE] (last visited Oct. 11, 2022).

State and local police departments are, in theory, bound by the same transparency law obligations that apply to every other agency. In reality, in spite of these laws, police departments maintain extraordinary levels of secrecy, as the example of Best’s public records requests helps to illustrate. 26 For the purposes of this Article, I use the term “police” to encompass both state and local law enforcement agencies, including sheriffs’ departments, which often control county prisons. For this reason, I sometimes discuss access to prison records as well. The example of Best’s public records requests helps to illustrate how this occurs. Through a web of informational protections extended by all three branches of government—statutory carve-outs crafted by legislators, favorable interpretations of those statutes extended by judges, and agency-level resistance to transparency obligations—police departments systematically evade meaningful public oversight through transparency law mechanisms. This web of protection gives rise to a kind of law enforcement “exceptionalism”—one that is comparable in some ways to the secrecy exceptionalism extended to national security agencies in the federal context. 27 See infra section II.B.2.

The problem of police secrecy has received significant public attention in recent years. In the wake of George Floyd’s murder and the nationwide protests that followed, city councils and state legislatures around the country passed a wave of police reform bills, many of which involved changes to the transparency statutes that govern police. 28 For a list of proposed state laws relating to data and transparency in policing, see Legislative Responses for Policing—State Bill Tracking Database, Nat’l Conf. of State Legislatures, https://www.ncsl.org/research/civil-and-criminal-justice/‌‌‌legislative-responses-for-policing.aspx [https://perma.cc/ATB3-TMNY] (last updated Dec. 10, 2022). And high-profile legal battles over the disclosure of police body camera videos have received national attention, leading to a growing public awareness of the complex body of laws that govern police recordings and other materials. 29 See, e.g., Ginia Bellafante, Why Secrecy Laws Protecting Bad Officers Are Falling, N.Y. Times (June 5, 2020), https://www.nytimes.com/2020/06/05/nyregion/police-records-50a.html (on file with the Columbia Law Review) (last updated June 9, 2020) (highlighting the push to repeal a New York law that “shield[s] the personnel and disciplinary records of police officers from public view”).

Transparency law reforms around policing have also garnered increased scholarly attention. Many policing and criminal justice scholars have pointed to improved transparency as an initial step toward broader reform. 30 See, e.g., Monica C. Bell, Police Reform and the Dismantling of Legal Estrangement, 126 Yale L.J. 2054, 2144 (2017) [hereinafter Bell, Police Reform] (arguing that enhanced transparency may “contribute to the overall democratization of policing in a way that could begin to root out legal estrangement”); Bennett Capers, Policing, Technology, and Doctrinal Assists, 69 Fla. L. Rev. 723, 738–50 (2018) (examining how new technologies might facilitate enhanced transparency in policing); Erik Luna, Transparent Policing, 85 Iowa L. Rev. 1107, 1166–70 (2000) (arguing in favor of enhanced police transparency). There is also an extensive body of case law and legal scholarship that seeks to remedy how police and prosecutorial secrecy disadvantages individual defendants within the broader criminal justice system. See, e.g., David Alan Sklansky, Democracy and the Police 91 (2008) (noting that key criminal procedural rulings of the Warren Court were intended “to get information to the defense, in order to improve the fairness of the adversarial process, not to expose the police to general public scrutiny” (emphasis omitted)). Others have examined secrecy in policing as part of a larger exploration of the ways that administrative law processes apply to police. 31 See Mailyn Fidler, Local Police Surveillance and the Administrative Fourth Amendment, 36 Santa Clara High Tech. L.J. 481, 520–26 (2020) (arguing for local administrative governance of police investigative technology); Barry Friedman & Maria Ponomarenko, Democratic Policing, 90 N.Y.U. L. Rev. 1827, 1831 (2015) (“Compared to the sprawling administrative codes that detail every aspect of agency practice, laws governing the police are notably sparse—if they exist at all.”); Barry Friedman, Secret Policing, 2016 U. Chi. Legal F. 99, 105–09 (“Policing agencies are exactly that: agencies in the executive branch of government. Yet, we govern them differently than the other agencies of executive government.”); Rachel Harmon, Why Do We (Still) Lack Data on Policing?, 96 Marq. L. Rev. 1119, 1128 (2013) [hereinafter Harmon, Data on Policing] (arguing that state and federal legislators and agencies require data on policing to regulate these law enforcement agencies effectively). And a previous generation of scholars also touched upon secrecy in policing as part of a broader examination of how administrative law might be used to better regulate police. See, e.g., Kenneth Culp Davis, An Approach to Legal Control of the Police, 52 Tex. L. Rev. 703, 703–04 (1974) (noting that an “astonishing” fact about police policy is that “[m]ost of it is kept secret from those who are affected by it”). And an important subset of policing and criminal law scholars have engaged with the transparency law regime directly, often by exploring the application of transparency law statutes to specific categories of police records, especially police disciplinary records and body camera recordings. 32 For articles discussing access to body camera footage under state public records laws, see, for example, Kami N. Chavis, Body-Worn Cameras: Exploring the Unintentional Consequences of Technological Advances and Ensuring a Role for Community Consultation, 51 Wake Forest L. Rev. 985, 997–1000 (2016); Mary D. Fan, Privacy, Public Disclosure, Police Body Cameras: Policy Splits, 68 Ala. L. Rev. 395, 413–19 (2016) [hereinafter Fan, Policy Splits]; Jocelyn Simonson, Beyond Body Cameras: Defending a Robust Right to Record the Police, 104 Geo. L.J. 1559, 1567–69 (2016) [hereinafter Simonson, Beyond Body Cameras]. For articles discussing access to police disciplinary records under state public records laws, see, for example, Cynthia H. Conti-Cook, A New Balance: Weighing Harms of Hiding Police Misconduct Information From the Public, 22 CUNY L. Rev. 148, 150–51 (2019); Kate Levine, Discipline and Policing, 68 Duke L.J. 839, 868–69 (2019) [hereinafter Levine, Discipline and Policing]; Rachel Moran & Jessica Hodge, Law Enforcement Perspectives on Public Access to Misconduct Records, 42 Cardozo L. Rev. 1237, 1243–52 (2021); Rachel Moran, Police Privacy, 10 U.C. Irvine L. Rev. 153, 157–65 (2019). For articles discussing access to other categories of police and criminal justice records under public records statutes, see, for example, Hannah Bloch-Wehba, Access to Algorithms, 88 Fordham L. Rev. 1265, 1298–303 (2020) [hereinafter Bloch-Wehba, Algorithms] (discussing access to policing algorithms); Sarah Geraghty & Melanie Velez, Bringing Transparency and Accountability to Criminal Justice Institutions in the South, 22 Stan. L. & Pol’y Rev. 455, 458–63, 470 (2011) (discussing access to prison records); Lauren Fash, Comment, Automated License Plate Readers: The Difficult Balance of Solving Crime and Protecting Individual Privacy, 78 Md. L. Rev. Online 63, 72–73 (2019) (discussing access to automated license plate reader information).

Yet the legal provisions governing these individual categories of records constitute only a small slice of the complex transparency law regime that governs access to police information. Missing from the current scholarship is a more sustained examination of the relationship between generally applicable transparency law statutes and police secrecy writ large. 33 See Rachel A. Harmon, The Problem of Policing, 110 Mich. L. Rev. 761, 808 (2012) (“The full legal landscape concerning information about policing, and the questions of law enforcement transparency and privacy which it raises, remain largely unexplored.”). Scholars have explored the exceptional treatment of law enforcement agencies in related fields. See, e.g., Erin Murphy, The Politics of Privacy in the Criminal Justice System: Information Disclosure, the Fourth Amendment, and Statutory Law Enforcement Exemptions, 111 Mich. L. Rev. 485, 503–07 (2013) (chronicling the exceptional treatment granted to law enforcement agencies under federal privacy statutes). Even when a specific exemption to a privacy law is tightened, law enforcement agencies can and often do continue to withhold records by invoking an array of other exemptions. 34 See infra section II.A for discussion of the exemptions used by police to avoid disclosing records. The effectiveness of record-specific reforms is blunted by the sheer number and variety of secrecy tools at police departments’ disposal. These narrow provisions are embedded within a broader legal and normative regime that permits police departments extraordinary secrecy. This regime itself warrants a closer look.

While the transparency law scholarship could help fill this void, this work has historically focused on federal transparency statutes, rather than the complex web of statutes that operate at the state and local level. 35 There is a rich body of work exploring the operation of federal transparency statutes and questioning their ongoing efficacy and value. For some examples, see Seth F. Kreimer, The Freedom of Information Act and the Ecology of Transparency, 10 U. Pa. J. Const. L. 1011, 1012–16 (2008); Margaret B. Kwoka, First-Person FOIA, 127 Yale L.J. 2204, 2243–54 (2018) [hereinafter Kwoka, First-Person FOIA]; David E. Pozen, Freedom of Information Beyond the Freedom of Information Act, 165 U. Pa. L. Rev. 1097, 1111–36 (2017). This is not uniformly true: Transparency law scholars have questioned the specific policy justifications that undergird certain law enforcement exemptions, 36 See, e.g., Jonathan Manes, Secrecy & Evasion in Police Surveillance Technology, 34 Berkeley Tech. L.J. 503, 538–45 (2019) (critiquing anti-circumvention logic); Moran, supra note 29, at 174–83 (critiquing certain police privacy claims). for example, and argued that public records litigation can and should be used to fill accountability deficits created by deficiencies in more traditional mechanisms of police oversight like constitutional criminal procedure. 37 Hannah Bloch-Wehba, Visible Policing: Technology, Transparency, and Democratic Control, 109 Calif. L. Rev. 917, 929–30 (2021) [hereinafter Bloch-Wehba, Visible Policing]. Further, communications and journalism scholars, along with scholar–practitioners, have explored the application of individual state statutes to the policing context and the disclosure requirements of specific categories of police records. 38 For examples drawn from the communication and journalism scholarship, see Erin K. Coyle & Stephanie L. Whitenack, Access to 911 Recordings: Balancing Privacy Interests and the Public’s Right to Know About Deaths, 24 Commc’n L. & Pol’y 307, 320–27 (2019) (surveying the different state statutes governing access to 911 calls); Michele Bush Kimball, Law Enforcement Records Custodians’ Decision-Making Behaviors in Response to Florida’s Public Records Law, 8 Commc’n L. & Pol’y 313, 318–22 (2003) (describing how Florida is the only state with a constitutional guarantee of access to government information, as well as this guarantee’s effect on criminal information); A. Jay Wagner, Controlling Discourse, Foreclosing Recourse: The Creep of the Glomar Response, 21 Commc’n L. & Pol’y 539, 551–56 (2016) [hereinafter Wagner, Controlling Discourse] (“In recent years, the Glomar response has encountered expanded use, broadening . . . horizontally across the exemption spectrum and vertically into state and local use.”); A. Jay Wagner, A Secret Police: The Lasting Impact of the 1986 FOIA Amendments, 23 Commc’n L. & Pol’y 387, 398–404 (2018) (considering how the 1986 amendments to the Freedom of Information Act (FOIA) placed intelligence organizations outside of public oversight). For examples from legal practitioners, see Nicholas T. Davis, Illuminating the Dark Corners: The New Mexico Inspection of Public Records Act’s Law Enforcement Exception, 50 N.M. L. Rev. 59, 61–65 (2020) (discussing how New Mexico’s transparency statute is interpreted independently of and more broadly than FOIA); Josh Moore, Out From the Curtains of Secrecy: Private University Police and State Open Records Laws, J. Civic Info., Oct. 2020, at 1, 9–14 (canvassing the varied treatment of private university police records among states). Legal practitioners have also developed excellent guides to navigating requests to law enforcement agencies in the various states. E.g., State Freedom of Information Laws, Nat’l Freedom of Info. Coal., https://www.nfoic.org/state-freedom-of-information-laws/ [https://perma.cc/HNS9-S3WS] (last visited Nov. 2, 2022); Open Government Guide, supra note 22.

But much of this transparency-focused scholarship is concerned more narrowly with police secrecy around new and emerging technologies—especially surveillance technologies and predictive algorithms. 39 See, e.g., Bloch-Wehba, Algorithms, supra note 29, at 1295–302; Fan, Policy Splits, supra note 29, at 413–19; Manes, supra note 33, at 504–11; Simonson, Beyond Body Cameras, supra note 29, at 1565–69. And, overall, the transparency law scholarship could do more to flesh out the many ways that transparency statutes at the state and local level privilege law enforcement agencies and ultimately facilitate, rather than impede, police secrecy. Increased access to information and data is often proposed as a partial solution to the problems of policing. 40 See supra note 27. Conversely, the value of transparency in policing has also come under increased scrutiny, criticized as an insufficient instrument for securing meaningful change. 41 See, e.g., Kate Levine, Introduction, 42 Cardozo L. Rev. 1165, 1168 (2021) [hereinafter Levine, Introduction] (arguing that transparency reforms can be “a distraction from radical change” in policing); Ngozi Okidegbe, The Democratizing Potential of Algorithms?, 53 Conn. L. Rev. 739, 746 (2022) (arguing that “transparency on its own is inattentive to the ‘layers of democratic exclusion’ that reinforce the political powerlessness experienced by those most harmed by the system” (quoting Jocelyn Simonson, Democratizing Criminal Justice Through Contestation and Resistance, 111 Nw. U. L. Rev. 1609, 1610 (2017))). And yet we know surprisingly little about the actual mechanics of police-records secrecy.

This Article aims to illuminate the less visible parts of the legal architecture of police secrecy—those parts that scholars and policymakers often overlook. In doing so, it offers three contributions. First, it provides a descriptive account of the ways that these transparency laws apply to police departments. It focuses on public records laws in particular, exploring both the fifty states’ public records statutes and the much larger web of exceptions and provisions relating to police secrecy that are scattered throughout each state’s legal code.

Further, it focuses on the law not just as it is written by legislatures and interpreted by judges but also as it is applied by police officers and other bureaucrats on the ground. Transparency law scholars have done excellent work in recent years examining the ways that federal transparency laws like the Freedom of Information Act (FOIA) are utilized by requesters. 42 See Kwoka, First-Person FOIA, supra note 32, at 2243–54 (discussing the four categories of first-person FOIA requests: (1) those made as stand-ins for administrative discovery, (2) those for government benefit applications, (3) those for private benefit applications, and (4) those for historical files for personal use); Margaret B. Kwoka, FOIA, Inc., 65 Duke L.J. 1361, 1379–414 (2016) [hereinafter Kwoka, FOIA, Inc.] (describing commercial FOIA use at a selection of government agencies). Yet the equivalent state-level statutes are exceptionally difficult to study. There are fifty separate public records laws across the states, and hundreds of thousands—if not more—of state and local agencies that must comply with these laws. 43 See, e.g., Press Release, U.S. Census Bureau, Census Bureau Reports There Are 89,004 Local Governments in the United States (Aug. 30, 2012), https://www.census.gov/newsroom/releases/archives/governments/cb12-161.html [https://perma.cc/AG2T-43N7]. Each local government generally houses multiple agencies. There are also thousands of state-level agencies. The complexity and scale of this regulatory regime poses a research challenge.

This Article explores how these statutes operate in practice by drawing on public records datasets containing tens of thousands of requests to police departments around the country. 44 MuckRock Data Spreadsheet, Law Enforcement Requests 2010–2021 (2021) (on file with the Columbia Law Review) [hereinafter MuckRock Law Enforcement Requests 2010–2021]. It analyzes these requests to better understand whether and how police departments either comply with or evade the strictures of the law. And it concludes that the data—while limited in scope—help to illuminate how these transparency law obligations too often work to foster police secrecy, rather than scale it back. Further, this Article shows that much of this police secrecy power is concentrated at the administrative level, at the moment when police officers and other policing bureaucrats first receive and respond to requests.

Second, the Article offers a normative account of police secrecy exceptionalism. It identifies three of the central claims used to justify these extraordinary protections: that secrecy prevents criminals from circumventing the law, protects civilians’ and police officers’ privacy, and ensures the continued effectiveness and efficiency of law enforcement agencies. It argues that these claims are deeply flawed and do not justify the exceptional levels of secrecy currently enjoyed by police. Further, it contends that one-off reforms of specific statutory provisions will be insufficient and that broader structural changes are needed.

Third, the Article has implications for ongoing debates about the structure, scope, and value of transparency in policing. Some policing scholars have pointed to improved public access to police information as an initial step toward broader reform. 45 See supra note 27. Others have critiqued this approach, arguing that scholars and policymakers have pursued transparency in policing at the expense of more substantive and radical changes and that improved access to police information is not the “panacea” that it’s often claimed to be. 46 See Levine, Discipline and Policing, supra note 29, at 845 (“While transparency may well play a role in some solutions to policing issues, it is not the panacea—the transparency cure—its advocates claim it to be.”); see also Levine, Introduction, supra note 38, at 1170 (“[T]ransparency has rarely led to any actual changes in the way overpoliced communities experience law enforcement or the rate at which racial disparities continue to infect stops, searches, and arrests.”). This Article lends support to many of these critiques. It explores the failings of the current transparency law regime and acknowledges that transparency alone will not bring about the structural changes needed to curb centuries of police abuse, especially against Black communities and poor communities of color.

Yet by mapping out the infrastructure of police-records secrecy, the Article also highlights the ways that improved transparency in policing may serve as a useful antecedent for more radical transformation—a preliminary step that can be used to guide and inform advocates going forward. 47 See Bloch-Wehba, Visible Policing, supra note 34, at 969 (describing how litigants “deploy transparency law to establish a foundation for further reform or accountability”). The current scholarship mostly focuses on narrow categories of records like body camera footage and police disciplinary records. 48 See supra note 29. But these statutes in fact cover all manner of police records: financial documents, emails, text messages, prison logs, vendor contracts, and internal policies. And these records can be put to use in myriad ways. Take the example of the campaign to eliminate criminal justice fees. Recent efforts have demonstrated how fragmented and diffuse these various sources of financial penalties can be, and advocates have drawn on public records statutes to map out this financial infrastructure in order to then abolish it. 49 See, e.g., Stephanie Campos-Bui & Jeffrey Selbin, U.C. Berkeley Sch. of L. Pol’y Advoc. Clinic, Making Families Pay: The Harmful, Unlawful, and Costly Practice of Charging Juvenile Administrative Fees in California 4 (2017), https://www.law.berkeley.edu/wp-content/uploads/2015/12/Making-Families-Pay.pdf [https://perma.cc/4VH5-E9GG] (describing the report’s reliance on public records requests); id. at 6–8 (describing different juvenile fee practices across the state); Juvenile Fee Abolition in California, Berkeley L., https://www.law.berkeley.edu/experiential/clinics/policy-advocacy-clinic/juvenile-fee-collection-in-california/ [https://perma.cc/A3B9-9MTY] (last visited Nov. 3, 2022) (describing the abolishment of juvenile fees in California).

Separately, this Article has implications for the transparency law scholarship. Scholars have explored the many ways that national security agencies are granted exclusive secrecy tools, and they have questioned whether such extraordinary protections are warranted. 50 See, e.g., Ashley Deeks, Secrecy Surrogates, 106 Va. L. Rev. 1395, 1407–11 (2020); Heidi Kitrosser, Secrecy and Separated Powers: Executive Privilege Revisited, 92 Iowa L. Rev. 489, 493–94 (2007); Shirin Sinnar, Procedural Experimentation and National Security in the Courts, 106 Calif. L. Rev. 991, 999–1006 (2018). Yet there has been little equivalent effort to map out the unique treatment extended to law enforcement agencies in the state and local transparency law regime across the fifty states. 51 Again, there are important exceptions. See supra note 29 and accompanying text. This literature could benefit from more sustained attention to state-level statutes as a whole. But additional scrutiny of these statutes as they apply to key government functions like policing is especially critical. 52 See supra note 35 (describing scholar–practitioner work in this realm). By exploring administrative-level policing responses, in particular, the Article helps to deepen our understanding of how these laws operate on the ground and round out the scholarship’s current focus on federal-level transparency law issues.

The Article proceeds in three parts. Part I explores the text, structure, and application of state transparency laws’ policing provisions. Part II chronicles the ways that these laws privilege police departments. It explores statutory carve-outs extended by the legislative branch, favorable interpretations handed down by the judiciary, and efforts to expand the scope of these protections from below by the police departments themselves. Part III examines the doctrinal and policy-oriented bases for secrecy exceptionalism, concluding that these justifications do not support the extraordinary levels of secrecy currently extended to police. It concludes with a discussion of possible remedies.