After supporters of Donald Trump bent on overturning the presidential election stormed into Congress, the Capitol Police are facing a barrage of questions about why they seemed so unprepared.
But don’t expect the Freedom of Information Act to help get answers.
Unique among major law enforcement agencies, the roughly 2,000-officer department that secures Congress isn’t subject to a transparency law that allows the public to access official records. As a branch of Congress, which is excluded from FOIA, no such law applies to the Capitol Police. When presented with FOIA requests, it’s common for the agency’s counsel to respond simply that it doesn’t have to comply. In 2005, Congress passed a law that gave the Capitol Police more latitude to shield records the department deemed sensitive from public disclosure.
Many observers say last week’s events highlight the need for Congress to shine more light on the law enforcement agency. American Oversight, a liberal legal group, said Thursday that Congress should amend FOIA to include the Capitol Police “to promote trust and accountability.” Transparency experts and advocates echoed the sentiment in comments to HuffPost.
“There’s no reason to give the Capitol Police a blanket, categorical free pass on FOIA,” said Frank LoMonte, the director of the Brechner Center for Freedom of Information. “We live in America. We don’t have secret police.”
The Capitol Police have drawn scrutiny over the years for arresting journalists and protesters, use-of-force incidents and discrimination allegations. But documents surrounding such events are often inaccessible unless they’re produced as the result of a court case. The agency shields basic records, like Office of Inspector General reports, from the public.
“A lot of people are rightfully asking really tough questions of the Capitol Police and the reality is that, unlike most police departments, we’re going to have a really tough time getting answers,” said Michael Morisy, chief executive of MuckRock, a news outlet devoted to public records access and reporting. “They have a track record of not being transparent about their operations, especially when there’s scandal or scrutiny.”
Federal law enforcement agencies like the FBI or Immigration and Customs Enforcement have public disclosure requirements under FOIA. Local police departments typically have similar responsibilities under separate state laws.
The agency’s lack of preparation for protesters who openly planned to storm the Capitol, some officers’ apparent friendliness with the rioters, and the stark contrast between Wednesday’s lackadaisical showing and the militarized response to Black Lives Matter protests over the summer have combined to drive multiple congressional investigations. Capitol Police Chief Steven Sund has already resigned, and two Capitol Police officers have been suspended, while many others are under investigation.
A situation like this may be a catalyst for some sort of records access procedure. FOIA expert Michael Ravnitzky
It’s unclear whether the appetite will grow within Congress to bring the agency under FOIA. (Emails to several members of Congress on the House Administration Committee, which oversees the Capitol Police, went unanswered.)
But the Capitol Police could easily start disclosing more records on its own.
The Smithsonian Institution, for example, follows the spirit of FOIA, even though it’s not required to by law. The Government Accountability Office also follows FOIA-like disclosure regulations. “There’s precedent for doing something like this — it wouldn’t be that complicated to do,” FOIA expert Michael Ravnitzky told HuffPost. “A situation like this may be a catalyst for some sort of records access procedure, one that’s suitable for the modern world. It’s probably long overdue, but this makes it more evident.”
At present, however, the Capitol Police doesn’t release reams of information on its own. In 2019, the agency published some 15 press releases, according to a report published in February by the left-leaning nonprofit Demand Progress Education Fund. Washington’s Metropolitan Police Department, by contrast, published 1,785.
The lack of transparency has even frustrated the department’s officers union. In contrast to the general silence from members of Congress on the issue, Capitol Police Labor Committee Chairman Gus Papathanasiou said in June that the agency should fall under FOIA, partly to force the board that governs it to produce orders and regulations related to working conditions.
“The Department’s insistence on secrecy ensures that the Union cannot monitor the parties’ relationship or fully require compliance with the parties’ collective bargaining agreement,” Papathanasiou told Roll Call. He did not return a request for comment from HuffPost.
Subjecting the Capitol Police to FOIA wouldn’t necessarily lead to major revelations about the storming of Congress. The law includes nine exemptions, including provisions protecting sensitive national security documents and records involved in an open investigation. All transparency laws include major carveouts that shield departments from disclosing sensitive law enforcement records, particularly during an investigation, LoMonte said.
But it could give the public a tool to better understand how the agency is administered, how it spends its money and what its officers’ disciplinary records look like.
“Whether Capitol Police are well managed or not is a topic of great public urgency,” LoMonte said. “The fact that the public has an intense interest in the workings of Capitol Police is now undeniably apparent.”