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HomeMy WebLinkAbout2023CV228 - Lynne V. Yonce - 13 - Pl's Pre-Hearing BriefDISTRICT COURT. LARIMER COUNTY. COLORADO ;, Court Address: 20 I LaPorte A venue FILED I~ C )MB\HEO C0UR l S Fort Collins. Colorado 80521 L/\R '!"\• "tr • Y. C'l'l ST ACY LYNNE, Investigative Journalist zon O[' -li A II -37 Plaintiff V. JEREMY YONCE, in his Official Capacity as Internal Affairs Records Custodian at Fort Collins Police Services ... . COURT USE ONLY Defendant ST ACY L \'NNL Invcstigati ve Journalist 305 West Magnolia Street #282 Fort Collins. Colorado 80521' stacy _ lynnc@comcast.net 970-402-1582 Case No.: 2023 CV 228 Div.: Villasenor Courtroom.: 3B PLAINTIFF STACY LYNNE'S SHOW CAUSE PRE-HEARING BRIEF Chief Deputy I !anion Leh. a records custodian for the Colorado Peace Officer Standards and Training (POST) Board. partially denied journalists' requests for access to records of which she was custodian. Ms. Leh's justification for partially denying the request was based on the following: ~ 27 POST provided essentially t\vo justifications. First. it noted that it would be exceedingly time-consuming to create such a list using its database technology. Second, it asserted that disclosing every certified peace officer's name would threaten undercover officers' safety and the -viability of their ongoing investigations. Since POST did not know who was undercoyer, it would need to coordinate with o,·er 250 law enforcement agencies across the state to obtain those identities. But even if it performed this labor-intensive process, that list would be immediately obsolete because covert investigations are routinely launched, concluded, or revived. Thus, because POST could not redact its dataset to protect the identities of undercover Page 1 of 7 officers, it could not ensure their safety or the viability of their investigations. (Emphasis added.) Gazette v. Bourgerie. 2023 COA 37 -Colo: Court of Appeals. 4th Div. 2023 Reasonable people can agree. as did the Colorado Cou11 of Appeals, that undercover officers' safety is a valid reason for keeping that infonnation out of the public realm. Protecting the integrity of those undercover officers· ongoing investigations is equally important. Ms. Leh also testified about balancing privacy concerns and the public interest as related to the journalists' requests: 1 28 Chief Deputy Hanlon Leh testified at the show callse hearing. She explained that she was personally involved in all records requests directed to and concerning the records within the custody of the Department of Law. including the three at issue here. In handling these requests. she testified that she considered the "very serious public interest" advanced by Plaintiffs' common goal of using the records to hold institutions accountable, enhance transparency, and increase public awareness about policing. But she concluded that this public interest was outweighed by logistical and privacy concerns -specifically, (1) the technological challenges of producing such a record and (2) the risk to undercover officers' safety and the viability of their ongoing investigations. (Emphasis added.) Id. The facts in Gazelle v. Bourgerie make a compelling case for when a criminal justice agency should deny access to records: to protect undercover officers and to protect ongoing investigations. It is also evident that Ms. Leh complied with the balancing test set forth in Harris r. Denver Post Corp .. 123 P. 3d 1166 -Colo: Supreme Court 2005. Continuing in Guzelle v. Bourgerie: 1 34 The custodian "must balance the public and private interests involved in the inspection request and dcte1mine whether to allow full disclosure. redacted disclosure, or no disclosure of the record." Freedom Colo. info .. 196 P.3d at 895. Such balancing entails an analysis of the relevant factors. including Page 2 of 7 1. the privacy interests of individuals who may be impacted by a decision to allow inspection; 2. the agency's interest in keeping confidential information confidential; 3. the agency's interest in pursuing ongoing investigations without compromising them; 4. the public purpose to be served in allowing inspection; and 5. any other pertinent consideration relevant to the circumstances of the particular request. Harris, 123 P.3d at 1175. While the facts in this present case. Stacy Lynne , Investigative Journalist v. Jeremy Yonce in his O.(/ll'ial Capacity as Record~ Custodiun al Fort Collins Police Services, are radically different from Ga:elfe and Harris. the law regarding application of the balancing test applies nonetheless. As Ms. Leh did at her show cause hearing. Mr. Yonce must describe his balancing process and articulate his reasoning for denying access to tbe records. Non-descript --public interest'' denials are insufficient. The records being sought in this case concern the Fort Collins Police Services internal affairs investigation about John Feyen's per se malicious defamatory statements that he made to a live audience and that were streamed live on February 2, 2022. On that date. John Feyen was the Assistant Chief of Police campaigning for the elected position of sheriff The per se actually malicious defamatory statements made by John Feyen in 2022 concerned his in-uniform on-duty conduct as a sergeant at the Larimer County Sheriff Office. John Feyen's internal affairs investigation records are being sought as part of the normal discovery process in the civil lawsuit where he is the Defendant. Because John Feyen failed on his special motion lo dismiss the per se actual malice defamation case against him, the records are being sought for that civil la'.vsuit. and because the public has a right to know about John Feyen·s history as a law enforcement officer. In 2019. vast numbers of elected oflic ials in the Colorado legislature made clear their intent to increase transparency and accountability surrounding law enforcement officers. Their efforts were codified and is commonly known as the Enhance Law Enforcement Integrity Bill. In 2021, the Page3of7 Colorado Supreme Court described in detail the legislative intent of Senate Bill 20~217 (Enhance Law Enforcement lntegrity) ... see People v. Sprinkle. 489 P.Jd 1242 (2021): ~35 The sponsoring legislators' statements and the committee members' questioning of witnesses during hearings on the Amendment make it abundantly clear that the Amendment's proponents sought to eliminate custodians' discretion to deny access to certain internal affairs records and to make it easier for the public to obtain such records without involving the courts. Hearing on H.B. 1119 before the H. Judiciary Comm., 72d Gen. Assemb .. 1st Sess. (Feb. 19, 2019) ("H. Judiciary Comm.") (statements of Rep. James Coleman. bill sponsor; and Rebecca 1249* l 249 Wallace, Policy Counsel. American Civil Liberties Union ("ACLU")). Representative Coleman stated that "this amendment removes the public interest exception. which is a primary basis on which law enforcement agencies currently refuse to release [internal investigation] files ." ld.; see also id. (statement of Donald Sissan. General Counsel. Colorado Fraternal Order of Police) (testifying against the Amendment but agreeing that it would remove the discretion previously given to records custodians). ~36 During the committee hearings. several witnesses testified that custodians were not applying the Harris balancing test as intended. See H. Judiciary Comm. (statements of Denise Maes, Public Policy Director. ACLU; and Rebecca Wallace): Hearing on H.B. 1119 before the S. Judiciary Comm .. 72d Gen. Assemb .. 1st Sess. (Mar. 20. 2019) (''S. Judiciary Comm.") (statement of Margaret Kwoka. Faculty. University of Denver Stunn College of Law). Instead. custodians routinely denied requests for access with a blanket statement that it was not in the public interest to release tbe files. See H. Judiciary Comm. (statements of Denise Maes and Rebecca Wallace); S. Judiciary Comm. (statement of Margaret Kwoka). ~3 7 Several witnesses testified that Denver was the only county in the state that allowed access to these types of records. but even that access had drastically declined over the decade preceding the Amendment. See H. Judiciary Comm. (statements of Denise Maes and Rebecca Wallace): S. Judiciary Comm. (statement of Margaret Kwoka). ~38 Altbough some legislators and witnesses expressed concern that the proposed legislation would threaten otlicer privacy rights and personal safety. the Amendment's proponents maintained that it struck "a balanced compromise by protecting tbe sanctity of internal investigations while defending every Coloradan's right to public information about their public servants. This bill removes the ability to deny requests for a specific type of incident however. [it] expands the ... redactions to protect officers' investigations and public safety." H, Judiciary Comm. (statement of Rep. James Coleman). The proponents emphasized that their goal was to improve transparency, fairness. accountability, and the public's trust in law enforcement. See S. Judiciary Comm. (statement of Sen. Mike Foote. bill sponsor). For example. Senator Foote described "the top values of this bill" by reading from a "recent" court case that said that "open access to internal affairs files enhances the effectiveness of internal affairs investigations rather than impairing them. Knowing that they will be scrutinized makes investigators do a better job and makes them and the department more accountable to the public. Transparency also enhances public confidence in the police department .... " ld. Page 4 of 7 139 Thus, by passing the Amendment, the General Assembly abrogated the balancing test of Harris and its progeny in this context. In other words. it eliminated the discretion previously granted to records custodians to deny CCJRA requests for certain internal investigation files. ~40 The hearings also made clear that the proponents intended for the Amendment to grant access to anyone who asked for it, whether they were involved in the underlying incidents or not. In support. individuals from several local media outlets explained how they use these records. See H. Judiciary Comm . {statements of Noelle Phillips. News Editor. Denver Post; Jill Farschman. Chief Executive Officer. Colorado Press Association; and Chris Halsne, Investigative Reporter, multiple news outlets). For example, Ms. Farschman descrihed her regular requests to the Denver police department for "every disciplinary lener [it has] issued this month." Id. Based on the contents of the letters. she would then decide whether to request additional documents or particular files. Id. Mr. Halsne testified that he often requested records to discover patterns of behavior within a department. Id And Ms. Phillips described her broad requests when she was reporting on Denver's search for a new police chief several years ago. id. Because all the candidates were internal, they all had internal affairs records that she could request. Id. After obtaining the records. she used the information in her reporting. which "contributed to the public discussion over who would 1250* 1250 be the best choice to lead the department." hi. 141 In sum, these media witnesses' testimony indicates that their routine practice was to request officer files without kno\"ving what they would uncover: that is. without necessarily knowing of a specific, identifiable incident they wished to investigate. And the legislators' questioning of these witnesses doesn't indicate that the legislators had any concern with members of the public making such broad requests. Nothing in the legislative history suggests that a requester should have to identify a specific incident or that the Amendment makes such broad requests impermissible. ~42 Thus. the Amendment's legislative history reflects the General Assembly's intent to provide broad access to completed internal investigation files regarding specific types of incidents of alleged officer misconduct. regardless of whether the person requesting access to the files can identify the specific incident. After reading the intent of the legislators in 2019, it is impossible to argue that those state officials intended for law enforcement agencies to deny access to internal affairs files that involved the actions of an officer who ,vas out of uniform and off duty but who presented himself as the Assistant Chief of Police while he was talking to a massive public audience about his actions while he was on duty and in uniform. Transparency and accountability is especially relevant in this case because John Feyen. as the Assistant Chief of Police at Fort Collins Police Services. was campaigning for the elected office of sheriff. was ultimately elected ... and is now currently the sheriff That alone is justification Page 5 of 7 for access to John F cyen • s internal affairs investigation records . But also, John Feyen is being sued for per se actual malice defamatory comments that he made when he introduced himself as the Assistant Chie fof Pol ice at Fort Collins Services. John Feyen ·s actionable comments were knowingly- made-intentional I ies about his o ffic ia 1. on-duty. in uniform actions as Sergeant at the Larimer County Sheriff's Office. And so, as part of the normal discovery process, the Plaintiff in a civil lawsuit has a right to access those internal affairs investigation records. Just as important .is P]aintiff s rights, the public has a right to know about John Feyen's law enforcement history in both capacities: as Chief of Police at Fort Collins Police Services and as the elected Sheriff of Larimer County. ✓ John Feyen·s 2022 internal affairs investigation was completed in 2022; it is finished. ✓ John Feyen is not an undercover officer. He is the elected sheriff of Larimer County. ✓ Providing a copy of John Fcy~n·s internal affairs investigation records ,,yjJI not be exceedingly time-consuming. In fact, John Feyen·s internal affairs investigation records have already been compiled. copied. and shared \.Vith numerous individuals . ✓ John Feyen's internal affairs investigation records do not contain confidential information such as the identities of undercover officers or ongoing confidential undercover case investigations. ✓ John Feyen does not have a legitimate privacy interest in his official records as a law enforcement officer. There is .a legitimate privacy interest in this internal affairs investigation request. that of Plaintiff Stacy Lynne. And still. the public·s interest outweighs even her interest. Why? Because-painfully~the elected sheriff of Larimer County was elected in part because of his maliciously defamatory lies about her. Page 6 of 7 The Plaintiff in the civil lawsuit against John Feyen has a right to know what is in John Feyen's internal affairs investigation records. The public's legitimate interest in knowing about John Feyen's history as a law enforcement officer-and especially having access to infonnation that is contained within his internal affairs investigation records-is clear. Filed on Wednesday. December 6. 2023. Investigative Journalist CERTIFICATE OF SERVICE I certify that on Wednesday, December 6. 2023, a true and accurate copy of the foregoing PLAINTIFF STACY LYNNE'S SHOW CAUSE PRE-HEARING BRIEF was served via email to: Andrew Callahan Wick and Trautwein, LLC 323 South College A venue, #3 Fott Collins, Colorado 80524 970-482-4011 970-821-9693 acallahan '@ wicklaw.com /~ ½ --f,__ ""., ST A C Y Q;J~@. In vestigative Journalist 305 West Magnolia Street #282 Fort Collins, Colorado 80521 970-402-1582 stacy _lynne @comcast.net Page 7 of 7