Exempt or not exempt? Judge considers FOIA lawsuit

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Attorney Jeff Fogel says city police don’t want to release narratives of stops and frisks because of “dirty linen.”
Staff photo Attorney Jeff Fogel says city police don’t want to release narratives of stops and frisks because of “dirty linen.” Staff photo

The Public Housing Association of Residents and local branch of the NAACP passed the first hurdle in their lawsuit against the City of Charlottesville for police records of stops and frisks when a judge refused the city’s request to throw out the suit August 25. The case is also raising questions about how government bodies use discretionary exemptions under the Freedom of Information Act to withhold materials from the public rather than use the discretion to release information.

In June 2012, the Charlottesville Police Department started reporting narratives of the reasons and circumstances of each stop—police call them temporary detentions—because of community concerns about racial profiling and because African-Americans had been stopped without any basis, the suit alleges.

Police initially were going to turn over the records in June 2014, says lawyer Jeff Fogel, who’s representing PHAR and the NAACP and who successfully sued the city over its panhandling laws. He became ill and was unable to follow through with his FOIA, and when he requested the records again in February 2015, it was denied, citing the “criminal investigative files” exemption to the Freedom of Information Act, according to the suit.

The lawsuit was filed in May and the city’s response was to ask that it be tossed because of the exemption.

The records were created to determine whether officers were following the law, not as criminal investigative files, said Fogel in court. The suit notes that in May 2014, Chief Tim Longo told City Council that of several hundred stops, African-Americans were detained in 70 percent, while only a small percentage of the stops led to criminal charges.

Judge Rick Moore said he’d need an evidentiary hearing to determine if the records are exempt. Assistant city attorney Andrew Gore offered up sample records and Fogel objected. “To allow the defendant to cherry pick seems a problem,” he said.

To be determined is whether Moore will review all of the estimated 500 police narratives.

After the hearing, Fogel alleged that police talk of transparency was “hypocrisy” and said, “There’s some dirty linen and bad searches they don’t want the public to know about. The city knows they’ve violated constitutional rights and that’s why they’ve refused to provide them to victims. That’s an outrage.”

Longo declined to comment on Fogel’s allegations, citing the pending court matter.

PHAR staffer Brandon Collins said police are trying to hide racial profiling. Withholding the records as criminal files “doesn’t equate with the fact most of these people haven’t been criminally charged,” he said.

Open records experts have another concern: that police routinely declare information part of criminal investigative files and therefore exempt from public view and oversight.

Attorney Alice Lucan calls the law “unnecessarily expansive” and says police can put anything in  a criminal investigative file, including public documents such as newspapers. “The core of the problem is that it becomes reflexive,” she says. “We can keep everything secret so why not do it?”

Megan Rhyne with the Coalition for Open Government points to the investigation of Virginia ABC agents’ bloody arrest of Martese Johnson, and Governor Terry McAuliffe’s claim that he’s not allowed to release the report. “It could be released in its entirety, with information redacted,” she says.

As for the Charlottesville Police narratives, she says, “To me, it’s odd that at a time when the public is looking so closely at police activities—whether to defend or detract—there’s a lot of attention being put on the way policing is done and it seems tone deaf to take such a position.”

This article was changed at 8:27 a.m. September 2 to reflect the correct name of the Public Housing Association of Residents.