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Police Transparency: Evaluating Access to Information in Relation to the Policing of Public Gatherings in Brazil, India, Mexico, South Africa and the United Kingdom
Table of Contents 1. 1.1 1.2
INTRODUCTION 3 Illuminating the Policy Context – The Policing of Protests 5 Why a Transparency Audit? Informing Police Reform with Transparency 6
2. 2.1 2.2 2.3 2.4
RESEARCH DESIGN Data Collection Scoring Country Selection How this Study Innovates
3. 3.1 3.2 3.3
AUDIT RESULTS AND ANALYSIS Police Preparedness Policing in practice Oversight and accountability
9 10 12 14
4. 4.1 4.2 4.3 4.4
PROCEDURAL AND SUBSTANTIVE OBSERVATIONS BY COUNTRY Brazil Mexico South Africa United Kingdom
16 16 17 17 18
5. 5.1 5.2 5.3 5.4 5.5
CONCLUSIONS AND RECOMMENDATIONS Information about Police Preparedness: Policies, Record Management Systems, Training and Equipment Policing in Practice: Importance of Disaggregated Data Oversight of, and Accountability for, the Policing of Protest Duty to Help Requesters Duty to Publish Information Necessary for Organizers to Know How to Protest Lawfully
20
6 6 7 7 8
20 21 23 24 24
APPENDIX 1 QUERIES AND SCORING POLICE PREPAREDNESS POLICE IN PRACTICE OVERSIGHT AND ACCOUNTABILITY
26 26 26 28 30
APPENDIX 2 COUNTRY-SPECIFIC JURISDICTIONAL CHARTS
31 31
Police Transparency: Evaluating Access to Information in Relation to the Policing of Public Gatherings in Brazil, India, Mexico, South Africa and the United Kingdom1 1. INTRODUCTION What public information do the police provide about how they serve and protect citizens and government? Policing is among the oldest and most fundamental public services, and police officers are frontline representatives of the state who shape the public’s perceptions of government like few others. Although we may ‘know good policing when we see it’, recent reports show that police departments tend to provide few details about processes and inputs - how policing takes place or is reviewed (e.g. training, oversight).2 When information is provided, it tends to focus on goal-oriented outputs and evaluations (e.g. arrests). In this sense and others, a growing body of evidence suggests that police departments have not been held to the same standards of transparency or legislative and judicial3 oversight as most publicly funded institutions.4 Indeed, in an era of greater citizen proximity to the government – of openness, transparency, and citizen participation in governance – the police in many jurisdictions seem to have become increasingly distant. 1. The study is based upon information and analysis provided by country teams led by Dr. Gregory Michener and researcher Rafael Braem Velasco with the FGV’s Public Transparency Program(Rio de Janeiro, Brazil); Venkatesh Nayak, Coordinator of the Access to Information Program of the Commonwealth Human Rights Initiative (India); Dr. Juan Salgado, Professor, Legal Studies Department, Centro de Investigación y Docencia Económicas (Mexico); David Bruce, independent researcher, and Catherine Kennedy, Toerien van Wyk, and Thomas Crankshaw, South African History Archive (South Africa); and Dr. Ben Worthy, Lecturer in Politics, Department of Politics, Birkbeck College, University of London (United Kingdom). Sandra Coliver of the Open Society Justice Initiative, along with Gregory Michener and Rafael Braem Velasco at the FGV Rio de Janeiro / Transparency Audit Network, led and coordinated the audit, with advice from Open Society staff (Emi MacLean, Rachel Neild, and Marc Krupanski), and wrote this report. 2. For example, see the excellent report by Access Info Europe, The Transparency of the Policing of Protests (2015), at http://www.access-info.org/frontpage/15021 . 3. See, Abel, Jonathan. “Brady’s Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team.” Stanford Law Review 67, no. 4 (2015): 743–808. 4. See, among others: Access Info Europe. The Transparency of the Policing of Protests. 2015. http:// www.access-info.org/frontpage/15021; Chanin, Joshua, and Salvador Espinosa. “Examining the Determinants of Police Department Transparency the View of Police Executives.” Criminal Justice Policy Review, July 19, 2015; United Nations Office on Drugs and Crime. Handbook on Police Accountability, Oversight and Integrity. Criminal Justice Handbook Series. New York: United Nations Publishing, 2011; Rosenbaum, Dennis P., Lisa M. Graziano, Cody D. Stephens, and Amie M. Schuck. “Understanding Community Policing and Legitimacy-Seeking Behavior in Virtual Reality: A National Study of Municipal Police Websites.” Police Quarterly 14, no. 1 (March 1, 2011): 25–47; Greenwood, David, Huisman Sander, ed. Transparency and Accountability of Police Forces, Security Services and Intelligence Services, 2004.
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People around the world are concerned about trends towards the ‘militarization’ of police and lapses in respecting human rights, both of which have found expression in the overly zealous policing of public gatherings around the world. It is this global concern about the quality and transparency of policing that animates the current study. Here we begin to tackle the question of what police in five countries – Brazil, India, Mexico, South Africa, and the United Kingdom – are prepared to tell the public about how they manage public gatherings. In particular, we evaluate the information that authorities provide through website-based disclosure or in response to access to information requests. This project constitutes what we call a ‘transparency audit’, an easily replicable methodology; our 14-question analysis of police transparency provides a brief assessment of three critical stages of policing of public gatherings: the preparedness of police forces, policing in practice, and the oversight and accountability of police forces. To anticipate, this study finds that police forces were reluctant to make publicly available a great deal of information that the public needs in order to understand how police handle and monitor protests, and to protect their rights to freedom of assembly and association. However, the results do highlight a few bright spots, some of which are quite surprising. The most comprehensive information, for instance, was provided by a federal police force in Brazil (Força Nacional). The South African Police Service (SAPS) discloses more information on the policing of public gatherings – combining passive and active transparency – than the combined police forces of other countries analyzed, but gaping deficits still persist. Among the countries analyzed, the police forces of India provided the least amount of information. Before delving further into the findings, we first provide a roadmap of the report. The next two sections situate the study in its substantive policy context and illuminate the benefits of examining a substantive public policy concern through the prism of a transparency audit. Chapter Two details the research design and methodology deployed to analyze what information police make available concerning their handling of public gatherings. Chapter Three lays out the results of the five-country transparency audit and analyzes better practices and transparency deficits within the three policing stages analyzed. The Fourth Chapter provides country-specific observations on the audit process in four countries, Brazil, Mexico, South Africa, and the UK. In particular, it highlights strong points and challenges encountered by researchers. Chapter Five lays out key recommendations based on overall and specific findings. As a general recommendation, the report urges government and police leaders to adopt a proactive approach to recording information and making the information publicly accessible. Keeping good records and making them public, save a few standardized exceptions, are practices to be expected of any effective democratic institution, but they become especially important when people’s lives, security and other fundamental rights –including the rights to freedom of assembly and expression – are at stake.
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1.1 Illuminating the Policy Context – The Policing of Protests The number of protests around the world has been growing since the mid-1990s.5 Although the right to peaceful assembly is a fundamental political right, and public gatherings have led to many of the world’s greatest policy and political advances,6 all too frequently, peaceful protests and public gatherings have been met with police actions that are excessive, violate internationally recognized rights, or prove ineffective in promoting public safety.7 These episodes reflect badly on the legitimacy of government and authorities, exerting a detrimental effect on public trust and participation. Both abusive and poorly managed public order policing can result in the deaths and injuries of participants, police, and innocent bystanders. In addition to the question of safety, police who are poorly trained and equipped or who lack policy guidance may engage in repressive measures such as arbitrary arrests and detentions. Policies may also authorize the disbanding of protests – and arrests or fines for leaders or participants in assemblies – when these should be protected under international standards. At a minimum, improper handling of protests risks violating the fundamental rights to freedom of assembly and expression. Moreover, police abuses can burden taxpayers and justice systems with expensive law suits8 or commissions of inquiry.9 Reports from advocates and academics alike make it abundantly clear that secrecy10 and inadequate oversight are much to blame for the persistence of abusive policing pisodes.11 5. Carothers, Thomas, and Richard Youngs. “The Complexities of Global Protests.” Carnegie Endow-
ment for International Peace, October 8, 2015. http://carnegieendowment.org/2015/10/08/complexities-of-global-protests/iint; Graham, Carol, and Soumya Chattopadhyay. “The Decade of Public Protest and Frustration with Lack of Social Mobility.” The Brookings Institution. Social Mobility Memos, March 7, 2014. http://www.brookings.edu/blogs/social-mobility-memos/posts/2014/03/07-frustrated-achievers-mobility-attitudes-public-protest-graham ; Ortiz, Isabel, Sara L. Burke, Mohamed Berrada, and Hernan Cortes. “World Protests 2006-2013.” SSRN Scholarly Paper. Rochester, NY: Social Science Research Network, 2013. http://papers.ssrn.com/abstract=2374098; 6. Donatella della Porta, Abby Peterson, and Herbert Reiter, eds., The Policing of Transnational Protest (Aldershot, England: Ashgate, 2006). 7. See, for example, Chapter two, pages 74-85: Lanza, Edison. “Annual Report of the Inter-American Commission on Human Rights.” Annual Report of the Special Rapporteur for Freedom of Expression. Washington, D.C., 2014; pages 150-167: della Porta, Donatella. Can Democracy Be Saved: Participation, Deliberation and Social Movements. 1 edition. Cambridge: Polity, 2013; “‘Take Back the Streets’: Repression and Criminalization of Protest Around the World,” 2013. https://www.aclu.org/ report/take-back-streets-repression-and-criminalization-protest-around-world; Bonner, Michelle D. Policing Protest in Argentina and Chile. Boulder, Colorado: First Forum Press, 2013. 8. See, for example, Broadwater, Luke, and Mark Puente. “Baltimore to Create Online Database of Police Brutality Lawsuits.” Baltimore Sun, November 13, 2014, sec. News; Reynolds, Dean. “Chicago Police Torture Vote Means Victims May Get Thousands in Reparations.” CBS Evening News, May 6, 2015. http://www.cbsnews.com/news/chicago-police-torture-vote-victims-thousands-reparations http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-ci-settlements-database20141113-story.html 9. For example, the Marikana Inquiry in South Africa cost $R153m (nearly US$11 million). See, News24. “Marikana Inquiry Cost R153m - Report,” July 5, 2015. http://www.news24.com/SouthAfrica/News/Marikana-inquiry-cost-R153m-report-20150705 ; also see Marikana Commission of Inquiry at www.MarikanaComm.org. 10. See Jonathan Abel, “Brady’s Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team.” 11. E.g., UN Special Rapporteur on Freedom of Assembly and Association, “Experts Convene In Santiago To Help Shape UN Experts’ Recommendations On Managing Peaceful Assemblies,” 4 May 2015, http://freeassembly.net/rapporteurpressnews/peaceful-protests-americas-consultation/
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1.2 Why a Transparency Audit? Informing Police Reform with Transparency A transparency approach is attractive for at least three reasons. First, although sparse and uneven, evidence concerning the impact of transparency and accountability initiatives in other public service delivery sectors suggests that these initiatives can contribute to improved service delivery.12 Individual studies have provided evidence, for example, of contributions to increased state or institutional responsiveness, lowering of corruption, and empowerment of local voices.13 Second, certain information is so fundamental to police effectiveness and accountability that police should be required to collect the information, update and organize it, and make it available to the public. Such documents as policies, standard operating procedures (SOPs), and training manuals are necessary for duty awareness; other information, including expenditures, after-action reports, and statistics are necessary to assess performance; and information about complaint mechanisms and statistics about complaints are necessary to foster accountability. Establishing that certain categories of information are necessary to effective and accountable policing is a first step in urging police to collect, update, and make publicly available these categories of information. Third, transparency audits provide a measurable indicator of governmental commitments to public policies, such as effective and fair policing. The measurability of transparency can help police pinpoint where efforts need be applied. Moreover, transparency audits are inexpensive to administer, can be replicated cross-jurisdictionally around the world, and involve relatively low levels of complexity. Measuring and comparing police transparency can motivate greater compliance with better practice norms, which in turn can lead to more effective policing.
2. RESEARCH DESIGN This study was undertaken to better understand what information is publicly available concerning the policing of protests. A group of international experts from around the world devised 14 queries to probe three stages associated with policing: police preparedness, policing in practice, and oversight and accountability (see appendix 1 for a full list of information requests and scoring guidance).
2.1 Data Collection In order to ensure the quality of data collection and the appropriateness of audit queries, we 12. See, for example, Archon Fung, Mary Graham, and David Weil, Full Disclosure: The Perils and Promise of Transparency (Cambridge M.A.: Cambridge University Press, 2007); Stephen Kosack and Archon Fung, “Does Transparency Improve Governance?,” Annual Review of Political Science 17, no. 1 (2014): 65–87, doi:10.1146/annurev-polisci-032210-144356; David Arellano-Gault and Walter Lepore, “Transparency Reforms in the Public Sector: Beyond the New Economics of Organization,” Organization Studies 32, no. 8 (August 1, 2011): 1029–50, doi:10.1177/0170840611416741.\\uc0\\ u8220{}Does Transparency Improve Governance?,\\uc0\\u8221{} \\i Annual Review of Political Science\\i0{} 17, no. 1 (2014 13. See, e.g., Rosemary McGee, et al., “Synthesis report: Review of impact and effectiveness of transparency and accountability initiatives,” (Transparency and Accountability Initiative, 2011), at http://www.transparency-initiative.org/reports/synthesis-report-impact-and-effectiveness-of-transparency-and-accountability-initiatives. 6
identified experts in each of the countries chosen for the study. They include professors and civil society actors who are experts on transparency, policing, or both.14 Country teams obtained information by internet searches and access to information requests, following logical steps any citizen-activist might take. Teams first searched for information proactively disclosed on websites of public authorities responsible for policing of protests; and if information could not be found or was deemed incomplete, researchers sent formal access to information requests to relevant governmental departments. The South African researchers were the only ones who identified themselves by institution as well as name. They did not think that this self-identification would impact the results, on the grounds that all their requests would be reviewed by a single unit at the South African Police Service (SAPS), which has received requests from the institution before and would likely assume that the institution was, in any event, behind the requests. We believe that the identification of the information-seeker can provide an important reciprocal signal of transparency, but we recognize that pre-existing relationships – whether friendly or adversarial – can affect results. Requests were submitted electronically in all jurisdictions.
2.2 Scoring Teams saved information found or received, including screenshots of relevant websites, to folders whose documents were analyzed, double-coded and scored by two researchers at the Public Transparency Program, Getulio Vargas Foundation, Rio de Janeiro (FGV). Double-coding and corresponding statistics help guard against ‘subjective’ scoring. Inter-coder reliability kappa statistics were calculated to ascertain how closely coders corresponded in their scoring judgments.15 Only one variable was measured – completeness. Scores were assigned on an m of n basis,16 using a standardized three-point scale and Boolean logic. For example, if the police disclosed x + y + z they received 100; if they disclosed x and either y or z they received a 50, and if they did not disclose at least x, they received a zero. Experts on policing agreed upon appropriate benchmarks for scores. All of the questions and associated benchmarks can be found in the first of the report’s two appendices.
2.3 Country Selection Five countries were chosen from different continents, all of which possess strong access to public information statutes.17 Two countries are unitary states (the United Kingdom and South 14. Supra note 1. 15. Inter-coder reliability statistics were calculated using Cohen’s Kappa statistic. The results for Méx-
ico showed an agreement of 97.22% and κ= 0.90 (SE=0.13, p
