On The Front Lines
In a Blow to Transparency, Supreme Court Lets Baltimore Police Stonewall Public Records Requests About Police Misconduct
WASHINGTON, DC — The U.S. Supreme Court has dealt a setback to government transparency by refusing to hear a case challenging how the Baltimore Police Department stonewalled requests for public records from journalists and watchdogs critical of police misconduct.
The lawsuit, Open Justice Baltimore v. Baltimore City Law Department, alleges that police delayed, denied, or imposed exorbitant fees for public records requests related to police misconduct—while giving preferential treatment to requests from friendlier sources or for less controversial records. A coalition made up of The Rutherford Institute, First Amendment Coalition and six legal scholars had urged the Supreme Court to intervene in the case, warning that the lower courts’ decisions set a dangerous precedent: government agencies can retaliate against critics for constitutionally protected speech while excusing violations as mere “bureaucratic dysfunction.”
“This ruling gives government agencies a free pass to punish critics and bury misconduct in red tape,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “If officials can retaliate against those who seek the truth by hiding behind excuses of inefficiency, then the public’s right to know is meaningless.”
Open Justice Baltimore created an online public database about police misconduct in Maryland. Between 2019 and 2022, Open Justice Baltimore and journalists Alissa Figueroa and Brandon Soderberg submitted 18 requests to the Baltimore Police Department and the City for records of civilian complaints against officers, internal investigations, officer personnel files, arrest reports, and other related materials. Instead of their FOIA requests being granted, they were stonewalled or priced out of reach, with government officials denying proper requests, disregarding statutory deadlines, imposing prohibitively high fees, and failing to grant required fee waivers. In one instance, the City even asked Open Justice Baltimore to take down information critical of the police from its website.
A statistical review of more than 580 requests indicated a pattern of discrimination in which preferential treatment was given to requests made for less detrimental content, such as files of officers with minimal misconduct complaints compared to those with numerous complaints. Despite this evidence, lower courts dismissed the lawsuit filed by Open Justice Baltimore and the two journalists, accepting an “alternative explanation” that the failure to process the FOIA requests was a result of “bureaucratic dysfunction” rather than retaliation against critics. In filing a friend-of-the-court brief on behalf of the police watchdogs, the legal coalition made up of The Rutherford Institute, the First Amendment Coalition and six legal scholars warned that dismissing such lawsuits based on vague “alternative explanations” threatens to silence legitimate claims and embolden government abuse and retaliation.
Thomas G. Saunders, Laura E. Powell, Reid M. Whitaker, and Kyle D. Ranieri of Wilmer Cutler Pickering Hale and Dorr LLP advanced the arguments in the Open Justice Baltimore v. Baltimore City Law Department amicus brief.
The Rutherford Institute, a nonprofit civil liberties organization, defends individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.
