Portland police collection of mental health data raises privacy concerns, lawyers say

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(The Oregonian/File)

Since spring, Portland police officers have recorded their observations about the mental state of suspects they arrest, a response to the city's 2014 settlement agreement with the federal government aimed at improving police treatment of people with mental illness.

The Multnomah County District Attorney's Office this month issued a memo to defense lawyers alerting them for the first time to the months' old practice and letting them know they're entitled to the information.

The form that police officers fill out isn't part of the police report, wrote Chuck Sparks, a chief deputy district attorney for Multnomah County.

Still, Sparks said, "much of the information" about a suspect's mental state is probably already noted in a police report as part of the routine recounting of an incident. "There is, however, a chance that some was not," he wrote.

Sparks said defense lawyers who want the information for any case - closed or open -- are entitled to it.

Portland defense lawyers in general said they welcome efforts to improve the bureau's interactions with people with mental illness, but said the practice raises potentially thorny issues about privacy and whether the information could somehow be used against criminal defendants.

The form asks officers to determine if a call has a "mental health component." It gives a list of symptoms, including disorientation, hearing voices and suicidal talk. Officers are asked to answer a range of questions about how they first learned of a mental health component to the call, whether force was used against the person with mental illness and whether a mental health professional was at the scene.

Lane Borg, executive director of the Metropolitan Public Defender Services, estimates 40 percent of misdemeanor cases handled by his office have a tie to mental illness. Those allegations often involve "quality of life" offenses, such as disorderly conduct or interfering with public transportation, committed by people who may be homeless and mentally ill, he said.

Like body cameras, the collection of mental health data can deepen the public's understanding of what happens during police encounters, Borg said. But he also worries about how the data will be used.

"People start realizing, we have information," Borg said. "How can we use that information? And sometimes information can be used in ways that aren't always beneficial to the person you are getting it from."

Bryan Francesconi, supervisor of the misdemeanor unit at Metropolitan Public Defender Services, said the mental health data may ultimately help the defense.

Such information offers context about a situation, essential details that are sometimes hard to come by, he said.

"As a defense attorney often what we end up talking about is people's histories and about the impact of the crimes that are alleged to have occurred," he said. "But often one of the main things we care about is what was happening at the time with the individual? What symptoms were they experiencing in the moment?"

Jann Carson, associate director of the ACLU of Oregon, said she understands that the data helps the bureau determine whether interactions between officers and people with mental illness are improving but wonders how the information may influence prosecutors' decisions on which charges to pursue and whether it will be used to stigmatize someone who has been arrested.

"Whenever government is collecting data about someone we have the usual concerns about who has access to this data," she said. "Does someone ever get to correct data they might believe is incorrect about them? How is the data shared? Does it live on permanently attached to someone's name?"

In Sparks' email to defense lawyers, he noted that the Police Bureau is considering whether to continue the practice. If it does continue, he said the bureau will likely develop a form that will be completed when "a mental health factor is present." That form would then become part of the police report, he wrote.

A Portland police spokesman this week declined to make someone available to answer questions about the practice and what the bureau has learned so far about officers' contacts with people who are mentally ill. Sgt. Pete Simpson said bureau officials familiar with the policy are busy preparing for next week's federal hearing on the Justice Department's settlement agreement with the city.

Simpson said the effort "allows the city to collect baseline information about the type of interactions officers have with people in crisis to better understand demand."

Ira Burnim, legal director for the Bazelon Center for Mental Health Law, said while he hopes the bureau takes steps to keep mental health information confidential, he sees the overall effort as a "positive step" that can improve the way police respond to people with mental illness.

"If you want to do a better job, one of the things you want to consider is collecting meaningful data," said Burnim, whose organization's mission is advancing the rights of adults and children who have mental disabilities. "And now that we have computers, you can collect a lot of useful data that helps you understand what's going on and how you can do a better job."

-- Noelle Crombie

503-276-7184; @noellecrombie

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