Transparency Blackout
Police departments in Northern Virginia refuse to release public documents.

By Michael Lee Pope
Thursday, March 18, 2010


The cop cruiser patrolling your neighborhood is operating in secret. And don’t bother asking for documents detailing their activities because police departments in Northern Virginia routinely deny requests for incident reports. Police officials in Arlington won’t even answer questions about their lack of transparency. It’s all legal under the Virginia Freedom of Information Act, which includes broad exemptions for police agencies. Local jurisdictions use their exemption in all cases, regardless of what the case is about or whether the case is open or closed.

"I don’t think we have to justify it," said Alexandria Police Chief Earl Cook in an interview about access to public documents. "A lot of things can be said about transparency, that doesn’t make it effective."

In a series of Freedom of Information Act requests to three Northern Virginia jurisdictions, police officials denied access to a wide range of public information. Alexandria police issued a press release including a mug shot when they arrested a burglar in Old Town last year, yet they won’t release the incident reports leading to his prosecution or Fowler’s arrest report. In Fairfax County, police officials said they were concerned sharing public information widely available elsewhere would have a chilling effect on victims and witness, although a spokeswoman acknowledged there’s no evidence to bolster this claim. And the Arlington County Police Department refused to answer questions about their denial to release documents related to the drunk-driving arrest of a former Alexandria police chief — a case that’s been fully adjudicated in the courts.

"I think Northern Virginia has really taken this to an extreme," said Ginger Stanley, executive director of the Virginia Press Association. "I understand the need of law enforcement to protect an ongoing investigation, but there’s also a public interest at work here."

THE CODE OF SILENCE has its roots in the Virginia Freedom of Information Act, passed by the General Assembly in the 1968. The legislation includes a loophole large enough for a police cruiser to drive through it. Local governments have an exemption that allows for a complete blackout for "complaints, memoranda, correspondence, case files or reports, witness statements and evidence." These documents that reveal a wide spectrum of detailed information about police behavior, everything from how investigations are conducted to how conclusions are reached. The way that exemption is exercised in Northern Virginia, that means citizens have only faintest idea of how their police departments are acting on their behalf. The only information available is through summaries of the documents police refuse to release.

"It’s a control thing," said Lucy Dalglish, executive director of the Arlington-based Reporters Committee for Freedom of the Press. "And there doesn’t seem to be any political will to do anything about it."

Ironically, the first paragraph of the Virginia Freedom of Information Act explains that all public records "shall be presumed open."

But that’s not how it works.

Police departments in Northern Virginia have chosen to interpret the law in a way that starts from the presumption that they will never share incident reports — regardless of what the case is about or whether the case is open or closed. That means police departments in Northern Virginia act without the kind of public scrutiny that acts as a check on public-safety officials widely available in other states.

"Virginia is the outlier," said Charles Davis, executive director of the National Freedom of Information Coalition, and professor at the Missouri School of Journalism. "These are documents that are available in most other states, but Virginia is unique in the level of closure."

Any legislative effort to undercut the broad exemption power would likely be opposed by groups such as the Virginia Police Chiefs Association. According to Dana Schrad, executive director of that organization, the association would rather see agencies work within the law and strike a balance between public disclosure and public safety. According to a law-enforcement guide to the Virginia Freedom of Information Act published by the association, the ability to withhold information also comes with the responsibility to not abuse that discretion.

"We encourage agencies to use their discretion in a judicious manner," said Schrad. "There may be situations where it’s in the best interest of the public to release this information."

Yet police officials in Fairfax, Arlington and Alexandria have adopted what they call a "blanket" approach to using their exemption. That means they have decided to withhold any document they can, making police officials in Northern Virginia open to the least amount of public scrutiny in America.

FAIRFAX COUNTY is the least transparent police department in Northern Virginia. Even defense attorneys in Fairfax complain that they have to get a court order to see police records that are routinely made available in the rest of Virginia. In contrast to Alexandria and Arlington, where prosecutors open their office to defense attorneys, the Fairfax commonwealth’s attorney’s office forces defendants to tie up court time and jump through bureaucratic hoops to get documents that are easily available elsewhere — even in Virginia.

"It certainly puts more of a burden on the defendant," said Jim Clark, a defense attorney who practices in Fairfax County. "I’d love to get every incident report, but that’s not how things work in Virginia."

Nowhere is the lack of transparency on display more dramatic than officer-involved shootings. The most recent example happened in July, when a Fairfax County police officer shot and killed a motorist on Richmond Highway. In response to a Freedom of Information Act request seeking information about the incident, Fairfax officials declined to release video footage of the shooting from police cruisers or copies of reports written in the wake of the shooting. Even the name of the officer remains shrouded in secrecy.

"Disclosure of the name is painful, but the greater good is transparency," said Jim Lay, an attorney who represented Alexandria police officer Carl Stowe after he shot and killed a teenager in 2006. "In my opinion, Fairfax County is exploiting the fact that there are insufficient requirements for public disclosure."

In January, Fairfax County Commonwealth’s Attorney Raymond Morrogh announced that he would not be filing criminal charges against the officer who shot and killed David Masters, who was unarmed. A press release issued on Jan. 27 suggested that Masters disregarded police lights and sirens in the minutes before the fatal shot was fired. But the police department denied a request for public inspection of the actual reports. That leaves citizens of Fairfax County with an incomplete portrait of how their police department used deadly force on a well-traveled stretch of road.

"I would like to see all of this information disclosed eventually," said Dallas Shawkey, chairman of the public safety committee of the Mount Vernon Council of Citizens Association. "It’s important for the community to know what happened in this case and in any case that involves the use of deadly force."

Fairfax police officials say they are concerned that releasing documents that are widely available in other jurisdictions would have what they call a "chilling effect." Victims and witnesses might be more reluctant to come forward, they say, if they knew their information would become part of the public record. Yet when asked if she had any evidence to support that theory, Fairfax County Police Department spokeswoman MaryAnn Jennings said she wasn’t aware of any.

"I don’t know if there’s evidence or not," said Jennings. "All I have is what our investigators and what our commanders and the police administration believe."

ARLINGTON COUNTY Police Department refuses to release the incident report for what may be its highest-profile arrest of 2009 — the drunk driving bust of David Baker, who was then the chief of police in Alexandria. Even now that Baker has served his five days in jail and the case is closed, police officials in Arlington refuse to release the report detailing what happened that humid July night. Through a spokesman, Arlington County Police Department officials declined to answer questions about its commitment to transparent government.

"I am in the corner of trusting our police department," said County Board member Barbara Favola, who was chairwoman when Baker was arrested. "If they push back I am not going to override them, and I don’t think I could get three votes on the board to override them either."

Yet Baker’s case highlights a number of ways police in Virginia hide their actions from public scrutiny. Did Baker receive special treatment because he was the chief of police in a neighboring jurisdiction and driving a city-issued vehicle? Who was the woman sideswiped by Baker, when his blood alcohol content registered at twice the legal limit that night? Did Baker try to use his position of power? The public may never know what the documents say about these questions because county officials refuse to release them even though they have the ability to do so.

The actions of the Police Department in the wake of the arrest also raise a number of questions about the level of transparency in Arlington. In the hours after Baker’s arrest, seven media organizations made public-record requests for the police report. County officials denied those requests, citing their exemption clause in the Virginia Freedom of Information Act. Instead of releasing the public document, Arlington officials offered a two-paragraph summary of the report for a fee of $24. The four organizations that agreed to the fee received a two-paragraph summary that misidentified David Baker as Paul Baker and incorrectly stated that the arrest took place in 1995 instead of 2009.

"Public officials who try to hide information never look good," said Chip Watkins, an Arlington tax attorney who saw a copy of the document and speculated that the mistake was intentional. "Either someone was trying to cover up for him or they were just sloppy."

IN ALEXANDRIA, Police Chief Earl Cook has been on the job since August, after Baker resigned. As one of the three finalists for the job of top cop back in 2006, he was the highest-ranking deputy chief when Baker was forced to step down in the wake of his drunk-driving arrest. Then, on the day he was officially announced as City Manager Jim Hartmann’s permanent selection for the job, Cook said that he would review the policy of shielding public access to documents that are widely available in other states.

"I think that’s something that’s going to have to be under review," Cook said when asked about the lack of access to public documents in Alexandria. "I did not disagree with the policy in the past, but I’m open to discussion about it. If we have a better way of doing it or if is going to serve the public better, perhaps we’ll change that policy."

Seven months into is tenure, Cook has yet to launch a formal review. When asked about the issue now, he says he never intended to conduct one.

"I didn’t have an idea in mind that I needed to release a report," said Cook. "What I was thinking in my mind is that I needed to review our processes to make sure we are doing those things that serves the community. And that’s what I’ve been doing on an ongoing basis."

The lack of transparency in Alexandria is consistent, even in cases when the police are seeking publicity. For example, a series of high-profile burglaries in Old Town last summer led to an arrest of a man named Ralph Fowler. On Sept. 25, the Alexandria Police Department issued a six-sentence press release along with Fowler’s mug shot. Yet in response to a Freedom of Information Act request, Alexandria officials declined to release the incident reports leading to his arrest.

"As one who promotes and advocates transparency I personally don’t have a problem with those documents being released," said Alexandria Mayor Bill Euille. "But I need to check with the proper authorities to see why they have such a hang-up."

Hartmann says the reason Alexandria refuses to release documents that are widely available in the rest of America is concerns about privacy. He says he stands by his police chief’s decision against full disclosure of public documents – even in cases where the police have sought publicity by issuing press releases.

"The police chief has concerns about certain information in police reports associated with victims or witnesses that he feels needs to be protected," said Hartmann. "There are certain circumstances where it would be in the victim’s or a witness’ interest to not have their names divulged at a particular stage of a case."

Blah Blah.. Who cares. Quit crying or become a cop and then you will know everthing.

Seriously there's a reason they don't tell you everything. Besides, most of the basement dwelling wannabes that post on here already know everything anyways-in their own mind at least.

Ok the guy who was the Chief in Alexandria went to jail and lost his high paying job, so what is being hid and how did he use his rank to help himself out? Try looking around and listening instead of running your mouth about what officials who believe in conspiracy theories tell you or you overhear while hanging out at the courthouse bathroom.

Privacy? Isn't that the reason it goes to the fredom of information office to process, and omit sensitive information. IMO they should release it, and just black out everything. It would give them something.

"The cop cruiser patrolling your neighborhood is operating in secret."

Give me a break. This is Alexandria for Gods sake, not East Berlin! Mike Pope is a clown and a yellow journalist.

"Seriously there's a reason they don't tell you everything."

Actually there are a few. I' not talking about deep conspiracy stuff, but there is still a great deal of bullshit about it.

First, I've been told by prosecutors that in Fairfax at least the prosecutors don't have their own investigators and they rely heavily on the police to develop the case for trial. If they allow defendants access to police information they fear that it will give defendants inside information on their case. Of course it is possible to strike a balance on this, requiring some information to be shared while withholding other information, and other police departments do this all the time. But why bother when you can simply say "withhold it all". The U.S. Constitution does require that the police share exculpatory information with the defense, but Fairfax has been reluctant to do so, knowing that it is hard to prove they didn't share the information if they don't share it. However they have been caught a few times.

Second, by not sharing information about a case the police avoid the need to actually work the case. A company I ran for a few years was the victim of several crimes investigated by the police. In one case the police were called by a neighbor and did detain some people only to let them go without notifying us. In another case the police even arrested an individual for this crime, the perp confessed, they let him go after he plead to another crime and still they would not give us his name.

Looks like "police secrecy" (what exactly is that?) is going to remain the status quo.

http://connectionnewspapers.com/article.asp?article=344843&paper=59&cat=104

Police Documents Remain Secret
Panel rejects bill that would have forced people to go to court to get documents available elsewhere.

By Michael Lee Pope
Thursday, October 07, 2010

Virginia has some of the most restrictive laws in the country shielding garden-variety police documents — basic incident reports — from public view. And that’s not about to change anytime soon.

This week, the Criminal Investigative Records Subcommittee of the Freedom of Information Advisory Council killed a bill originally introduced by state Sen. John Edwards (D-21) of Roanoke. As originally drafted, Edwards’ bill would have allowed access in cases that are no longer under investigation. During a subcommittee meeting in August, he offered a compromise that would have forced people wanting public documents to go before a judge to get them. Then subcommittee member Del. Morgan Griffith (R-8) suggested that the draft under consideration place the burden on the petitioner rather than the government.

"By saying that the public interest is automatically on the side of withholding is kind of putting a thumb on the scale," said Craig Merritt, a lobbyist representing the Virginia Press Association, during Monday’s subcommittee hearing. "We are not sure this is consistent with the purpose and the policy of the Freedom of Information Act."

Public-safety officials from across the commonwealth have opposed increasing transparency of police documents, whether a court hearing is required or not. And because the Virginia Press Association had concerns about how the bill had evolved since Edwards initially introduced it, the effort was tabled. Subcommittee member E.M. Miller said there was no reason to move forward with an effort that nobody liked anyway.

"Oh, I’m definitely a FOIA advocate," said Miller after the hearing. "This is a little different situation, where you are dealing with police investigation records. I’m a little more, I guess, cautious when it comes to opening up those kinds of records."

AFTER THE SUBCOMMITTEE adjourned, Virginia Press Association Executive Director Ginger Stanley said she didn’t consider the vote a total loss. As it was written, she said, the bill was a flawed vehicle for increasing transparency of government. And the vote will now give her time to sit down with stakeholders, including police, prosecutors and sheriffs, to craft a bill that everybody can get behind. She expects to spend the next year crafting a compromise that would be acceptable to all involved in advance of the 2012 General Assembly session.

Meanwhile, Stanley praised a related effort of the subcommittee to standardize information that is released by police departments throughout Virginia. The Virginia Freedom of Information Act requires that certain kinds of criminal information be released, including a general description of incident as well as the date, location and identity of the investigating officer. Yet Stanley said this information isn’t always consistently released, especially in Fairfax County, Chesapeake, Norfolk and Virginia Beach.

"We’ve had incidents where the basic information is not being released, and it’s not being released in a timely manner," said Stanley. "Many times, you’re having to go to court to get this information, so I think this will help."

If approved by the Freedom of Information Advisory Council, the proposed bill to standardize basic information would be considered in the 2011 session of the General Assembly.