Activist sues city after Des Moines police deny access to use-of-force records
A local activist on policing issues is taking the city to court, seeking to win access to hundreds of incident reports documenting use of force by Des Moines police officers.
Harvey Harrison, a retired attorney and longtime volunteer with racial justice groups such as League of United Latin American Citizens and the NAACP, filed the lawsuit filed earlier this month. According to his complaint, Harrison in 2019 founded Just Voices, an organization that seeks to document what it alleges are examples of racially biased policing in Des Moines.
After widespread protests and clashes between demonstrators and police in 2020, the complaint says, Harrison began work on "a People's History of the 2020 Protests." He asked for and received a copy of the department's 2020 Use of Force Report, which summarizes 282 use-of-force incidents. But when he requested the 387 individual use-of-force incident reports (including in some by multiple officers in the same incident) used to prepare the annual report, the city said no, according to the complaint.
The lawsuit seeks a court order directing the city to provide the reports and to pay damages and attorney fees to Harrison.
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City attorneys did not respond to questions about the case, and the city has not yet filed a response in court. Harrison's attorney, Gina Messamer, said she and Harrison believe the incident reports are public records, and that other documents used in preparing the city's 2020 report might be covered by their request as well.
Multiple reasons given to withhold reports
City officials offered several justifications for withholding the documents, according to the complaint.
It said Deputy City Attorney Carol Moser told Harrison the documents are considered confidential personnel records of the officers and are exempt from disclosure. Moser also cited the Iowa Code's "Peace Officer, Public Safety, and Emergency Personnel Bill of Rights," which exempts from disclosure "an officer’s statement, recordings, or transcriptsof any interviews or disciplinary proceedings, and any complaints made against an officer."
It is not clear how many of the 2020 use-of-force incidents resulted in formal complaints or disciplinary proceedings against the officers involved.
According to the complaint, police department public information officer Lisa Mickey also said the incident reports fall under a section of Iowa law concerning "peace officers' investigative reports" that exempts from release officers' personal identifying information, such as Social Security numbers, or, "identification documents or other documents necessary to conduct a lawful undercover criminal investigation." It is not clear whether or how the department uses the incident reports in actual investigations.
The complaint said Mickey also told Harrison that "the documents used in the preparation of the 2020 report were gathered in anticipation of litigation, and therefore are considered attorney work product." Attorneys traditionally are allowed to keep confidential their notes, drafts and other documents prepared during litigation, and Iowa law exempts such "work product" from disclosure. Iowa court rules define such materials as those showing "the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation."
It's not clear, however, whether city attorneys were directly involved in creating the documents or simply collected existing DMPD documents for the report, or which litigation the city alleges the documents were gathered for. Nor is it clear that a government attorney, by compiling otherwise-public records for a report, could shield those records from public view.
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Previous suit led to $100 penalty for DMPD official
Randy Evans, executive director of the Iowa Freedom of Information Council, said he's not aware of any previous litigation over whether a police department's use of force reports should be available to the public, and called the need for such disclosure "a fundamental aspect of oversight of law enforcement."
"We believe the public is entitled to know how questions of proper, or improper, use of force are resolved by police commanders," Evans said in an email. "Citizens in many other states have access to such reports, but Iowans do not. And the lack of access merely serves to fuel distrust of law officers and their commanders."
This lawsuit isn't the first time that Harrison has tangled with city officials over public records. In 2019, Harrison sued the city for access to body camera video of a controversial arrest. The court eventually sided with Harrison and ordered Des Moines police spokesman Sgt. Paul Parizek to pay a $100 civil penalty for withholding the video.
The new suit doesn't name Parizek, but instead is directed at Mickey. City attorneys did not respond when asked via email if they're confident this suit will turn out differently than the previous one.
After reviewing Harrison's lawsuit, the Des Moines Register has filed its own record request to the city seeking the same use of force reports from 2020.
William Morris covers courts for the Des Moines Register. He can be contacted at wrmorris2@registermedia.com, 715-573-8166 or on Twitter at @DMRMorris
This article originally appeared on Des Moines Register: Des Moines police face suit seeking release of use-of-force records
