Democrats and Republicans in Congress have called for an overhaul of law enforcement practices following the police killing of George Floyd, but those same lawmakers who want accountability and transparency nationwide aren’t taking a stance on whether their own department, the Capitol Police, should be subject to the Freedom of Information Act. As a part of the legislative branch, the department remains exempt from the law.
House and Senate Democrats rolled out an expansive criminal justice bill on June 8 to hold law enforcement accountable for misconduct in court, improve transparency through data collection and upgrade police training and policies.
Their legislation would, in part, create a national police misconduct registry, maintained by the Justice Department, that would be made public. It would also mandate state and local law enforcement agencies to report use of force data, disaggregated by race, sex, disability, religion and age.
A Senate charge to revamp policing is being spearheaded by Sen. Tim Scott, a South Carolina Republican.
Despite the public outcry for more transparency, none of the lawmakers who serve on committees whose jurisdiction includes the Capitol Police said the force charged with protecting and securing Congress should be subject to the 1966 Freedom of Information Act that requires federal agencies to disclose a large amount of government information to the public.
Congress is not subject to the law, and the Capitol Police, as a component of the legislative branch, is also exempt from any FOIA request.
This reality leaves documents as fundamental as inspector general reports shielded from the public. On May 19, when CQ Roll Call asked, through FOIA, for annual Capitol Police inspector general reports dating back to 2015, James W. Joyce, a senior counsel for the department, said they need not complete the document request.
Joyce wrote in response to the email request: “please be advised that the United States Capitol Police, as a legislative branch entity, is not an ‘agency’ as defined by 5 U.S.C. §§ 551 et seq., under the Freedom of Information Act. Therefore, the USCP is not subject to the requirements of the Freedom of Information Act.”
A House Administration Committee aide, when asked for a Capitol Police IG report, said he was told those reports are “law enforcement sensitive” and “not a matter of public record.”
In a separate request for the most recent USCP inspector general report, spokeswoman Eva Malecki said “the Office of Inspector General is an independent office from the Department, and reports directly to the Capitol Police Board. Where the Inspectors General of the executive branch are required to post reports and audits on their web sites, the USCP IG statute does not require such public disclosure of its reports.”
Rep. Rodney Davis, ranking member on the House Administration Committee that oversees the Capitol Police, said he wants more transparency on the force but didn’t say whether it should be subject to FOIA.
“I will always be indebted to the outstanding USCP officers who saved my life and the lives of many of my colleagues on a baseball field three years ago and part of honoring them is ensuring we weed out any bad actors within the police force and improve department offerings for professional development,” the Illinois Republican said. “I believe part of doing that involves allowing the Chief to have final decision authority on employment decisions and increasing transparency from the department. Specifically, appropriately redacted IG reports, certain policing data from the department, and a publicly available annual reports detailing the activity of the department.”
A spokesperson for Chairperson Zoe Lofgren, a California Democrat, did not respond to a request for comment.
The proposed Legislative Branch budget for fiscal 2021 would boost spending for the Capitol Police, including increasing salary expenses from $379 million to $417.1 million over the previous year. General expenses would rise from $85.2 million to $103.1 million. This includes police cars, uniforms, weapons and security equipment. Overall, the combined salary and general expenses would make the Capitol Police budget $520.2 million.
The Capitol Police, which gets its funding from taxpayer money, is able to make arrests outside of the Capitol complex, including around Union Station. Jonathan M. Smith, executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, said Congress needs to address the opaqueness of the force.
“They operate not only on the Capitol grounds but they have a cooperation agreement with the city that permits them to make arrests off the Capitol grounds,” Smith said. “For them to be an agency operating in the District without the same kind of transparency that the District government has is really not a good thing, and Congress should address it and fix it.”
Demand Progress, a progressive organization, has written to several lawmakers asking for them to improve the accountability of the Capitol Police. The group’s policy director, Daniel Schuman, noted that almost 10 percent of annual arrests are made at Union Station. Many of those arrests are for traffic violations or drug use, according to Demand Progress.
“When the USCP is acting in a law enforcement capacity, it should be held to similar standards as other law enforcement agencies,” the letter says. “When it acts like a federal agency, it should be held to account like all federal agencies.”
Rep. Tim Ryan, an Ohio Democrat who chairs the Legislative Branch Appropriations Subcommittee, which controls the coffers for the police, said his panel is working on increasing transparency, but did not weigh in on FOIA.
“All police departments have an obligation to be transparent, and the U.S. Capitol Police is no exception,” Ryan said. “The Legislative Branch Subcommittee, as well as the other authorizing committees on Capitol Hill, conduct rigorous oversight of the USCP and continues to work to improve the availability and accessibility of arrest data and other information. We are currently looking into a number of improvements to expand transparency as we move through the FY 2021 cycle.”
Ryan’s counterpart on the committee, ranking member Jaime Herrera Beutler echoed her colleague. “We plan to keep working across the aisle to increase transparency and oversight of the U.S. Capitol Police, and will seek improvements in this regard as we work to craft the FY 2021 spending plan,” the Washington Republican said.
Representatives for leaders of the Senate committees with oversight of Capitol Police — Senate Appropriations Legislative Branch Subcommittee Chairwoman Cindy Hyde-Smith, R-Miss.; ranking member Christopher S. Murphy, D-Conn.; Senate Rules and Administration Chairman Roy Blunt, R-Mo.; and ranking member Amy Klobuchar, D-Minn. — did not comment.
Representatives for Speaker Nancy Pelosi, House Minority Leader Kevin McCarthy, Senate Majority Leader Mitch McConnell and Senate Minority Leader Charles E. Schumer also did not respond to requests for comment. A spokesperson for Rep. Karen Bass, D-Calif., the sponsor of the Democrats’ policing legislation, did not comment.
Anne Weismann, chief FOIA Counsel for Citizens for Responsibility and Ethics in Washington said she files several records requests with the Secret Service, and while they withhold some documents because they are sensitive to law enforcement operations, she calls the Capitol Police’s denial of records that are important to the public unnecessary.
“You have a police force that is answerable only to Congress, and not the public, even though they can take actions that will have a direct effect on the public,” Weismann said.
“This moment in time, it’s probably more striking than ever that we have a police force that does interact with the public, but there’s no public accountability,” Weismann said.
The Capitol Police have been hesitant to reveal information dating back years. In 2013, when 34-year old Miriam Carey was shot and killed by the Secret Service and Capitol Police, the department left many questions unanswered.
The Capitol Police union says the department needs to make overhauls to its system, including the addition of FOIA.
“The Union echoes recent calls for transparency and accountability at the USCP, including amending the Freedom of Information Act to apply to this Department,” said Gus Papathanasiou, the Labor Committee chairman. “USCP has refused to make available information that other police departments publicize as a matter of course, including the Capitol Police Board’s orders and regulations which govern employee 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.”
When information has come to light about the Capitol Police, for instance, in court cases, the results have painted a largely unflattering picture. These include a systemic failure to properly supervise probationary officers, alleged sexual harassment and alleged discrimination.
“I think it is particularly shameful that the Capitol Police is so opaque and unaccountable to anybody,” Smith of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs said.
When CQ Roll Call asked for a list of all USCP officers who have had complaints filed against them for misconduct since January 2018, what the alleged violation was, how did the department handle it and how many violations does each officer have in their file, Malecki said the department couldn’t provide the information, but she did give an overview of complaints.
There were 727 complaints lodged against the Capitol Police over a three-year span from 2017 through 2019, according to the summary of internal affairs investigations by the department’s Office of Professional Responsibility.
“The Department holds itself and its employees to the highest levels of professionalism, and any allegation of employee misconduct is taken very seriously and is investigated thoroughly,” Malecki said. “All substantiated complaints involving USCP personnel result in the Department’s taking disciplinary action and/or requiring corrective training.”
As a follow-up question to the complaints disclosure, CQ Roll Call asked Malecki for the number of sworn officers employed by the Capitol Police. She didn’t answer that question and instead responded: “We have 2,300 officers and civilian employees.” This is a figure available on the public-facing website, but it doesn’t shed light on how many actual police officers are employed by Capitol Police.
There are approximately 2,000 sworn officers in the department, according to Papathanasiou. A former House Administration Committee aide told CQ Roll Call there are 1,900 sworn Capitol Police officers.
This is yet another example of the Capitol Police not disclosing information that is readily available at other law enforcement entities, such as D.C.’s Metropolitan Police Department.