Why were the Capitol Police so unprepared on January 6?
As journalists unpack the Capitol Police’s response to the mob, a long-standing roadblock persists: The department is not subject to the Freedom of Information Act.
Chris Marquette is an ethics and accountability reporter at CQ Roll Call who covers the Capitol Police and explains different avenues of access to the department and what types of documents journalists should request from law enforcement.
Can you provide some context about why the Capitol Police are not subject to FOIA requests?
Marquette: The Capitol Police as part of the Legislative Branch is not subject to the Freedom of Information Act. So if a journalist asks for records of police misconduct or inspector general reports, a lot of basic fundamental questions go unanswered. They’re just not required under the law to comply.
Have you ever tried to FOIA the Capitol Police? What happened?
Marquette: I went through this process back in May when I was trying to find their inspector general reports and I’d had no luck getting it from congressional committees with oversight of the Capitol Police. I finally said, hey, let me try to FOIA them. Then when I tried to FOIA them for inspector general reports dating back to 2015, James W. Joyce, the senior counsel for the Capitol Police, said that they don’t need to complete the document or request. What they said was: “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.”
So, you know, they’re not technically an agency and not required to produce documents they don’t want to produce, which is a problem. This is a police department that has more than 2,300 employees and 1,879 sworn officers, I believe, and a budget of $515 million.
What are some other ways that journalists can obtain access to the information they need right now to cover the story on the Capitol Police response?
Marquette: The Capitol Police do interact with and liaise in their law enforcement duties with the Metropolitan Police Department and various other federal agencies. You could send a FOIA request to those other agencies to see if they have any documents that are responsive to something regarding the Capitol Police, but that’s a more circuitous route than most journalists would want to take. And, to be honest, I haven’t had much luck with that.
I have gone through the Capitol Police’s press and public information officer — I’ve asked them what their jurisdiction is, square mileage, if they could help me better understand some arrest data that I was looking into, and almost all of those questions go unanswered. So, it’s very difficult to get information from the Capitol Police. Some information as fundamental as how many sworn officers [there are] is difficult to get from them. When I was writing a story about the secretive department that came out in June of 2020, I asked the spokesperson how many sworn officers there were. She didn’t answer the question; she just told me they had 2,300 officers and civilian employees. The reason why you want to know the number of sworn officers is that you want to be able to compare it with other police departments across the nation. It’s hard to do when they don’t give you the information.
You can also go to the Capitol Police website and see the limited resources that they provide to the public on their website.
How do you think the events of this week — particularly the criticism surrounding the lack of preparedness — will impact future access to the Capitol Police?
Marquette: I think there’s going to be a fundamental overhaul. The Capitol Police have always been funded by Congress. There have been some oversight hearings about the Capitol Police over the years. But for the most part, the Capitol Police have been on the back burner of congressional lawmakers’ minds and because of what happened on that tragic January 6 day, I think a lot of shortcomings of the department have been thrust into the forefront. As has been reported, there are several congressional investigations that are going to take place. And there’s an independent commission.
I think you can expect to see the Sergeant at Arms of the Senate and former Capitol Police Chief Steven Sund — he has recently resigned — be brought before congressional panels and be asked tough questions. I think this intense scrutiny might establish a basis for lawmakers to make the department subject to the Freedom of Information Act and be more responsive to records requests. However, that could get a little thorny and complicated because the reason why the Capitol Police is exempt is because they’re part of the Legislative Branch. Congress is also not subject to FOIA. So, do lawmakers want themselves to be subject to FOIA is another question.
In general, what documents should reporters be asking for when submitting FOIA requests to law enforcement?
Marquette: For local law enforcement, police misconduct records: How many have there been, against what officers, things of that nature. What they’re spending their money on — you’ve got to look at their budgets very closely. Local police departments should be putting out arrest data with as much information as you can get about these arrests. They should be putting these weekly arrest reports out with detailed information on who they’re arresting and why. In addition, citizen complaints are another thing that should be requested, and which officers at the local department, at the local level, have received the most citizen complaints against them. I think that’s a good place to start.
what about FOIA request to members of congress of their communications with capitol police?