FOIA suit fails: Judge rules police don’t have to release stop-and-frisk records

Jeff Fogel filed a FOIA lawsuit for PHAR, where Brandon Collins, right, is a staffer. Collins said the police narratives were different from what he expected. Jeff Fogel filed a FOIA lawsuit for PHAR, where Brandon Collins, right, is a staffer. Collins said the police narratives were different from what he expected.

 

After Charlottesville Police Chief Tim Longo’s report to City Council stated that 70 percent of the people police stopped were African-American, the Public Housing Association of Residents and the local NAACP filed a lawsuit seeking police records under the Freedom of Information Act, according to their lawyer, Jeff Fogel.

Judge Rick Moore ruled September 11 that what had been described as “narratives” of temporary detentions, aka stops and frisks, were criminal investigative files and exempt under FOIA. He read a handful of the reports, saying, “I think it’s in the public interest to hear so there’s not a veil of secrecy.”

In 2012, Longo required officers to start reporting narratives of each stop to look at “the decision making of the officer making the stop,” he testified. “I was shocked we weren’t keeping this important constitutional record.”

Fogel initially made a FOIA request for the narratives in June 2014 and was told he could have them, but then he became ill, according to the lawsuit. When he requested them again in February, he was told they were criminal investigative files and exempt under FOIA. In court he asked Longo why he changed his mind.

Longo said he wanted to balance the needs of the community with the department’s interest in exercising the exemption by constructing an independent review process that could include the citizens advisory panel, the Human Rights Commission and the commonwealth’s attorney office.

In one instance, said the chief, an officer was sent to take a constitutional class at Montpelier to make sure he had proper knowledge of the law. “It was determined an officer had made a misapplication of the law,” he said.

After the hearing, Fogel said, “We learned there were some bad searches from the mouth of the police chief.” And he contended that withholding the narratives was “a political decision not to expose the police department to liability from illegal searches.”

Moore acknowledged that Fogel was at a disadvantage in the suit because he had not seen the narratives, and the judge said he read all 237 of the records the city provided. “They are all, in my opinion, criminal investigative files,” he said. Almost all were in response to calls—about fights, someone drunk, property loss or injury, he said.

He read the first four reports:

  • A white male drank half a beer and walked out of a bar without paying. He told the officer the beer was warm and went back in to pay for it.
  • A man was disorderly and drinking in front of a store. The officer found a person matching the description with a 40-ounce malt liquor, and gave him a ticket.
  • Three witnesses said during an argument at closing time, a man spit in the face of a woman and kicked her several times on the mall. The officer talked to the suspect who denied touching anyone.
  • A witness said a black male was sleeping on a bench. The officer spoke to the man, noticed slurred speech and the smell of alcohol, and took him to the Mohr Center, a residential treatment center.

In all of these instances, said Moore, although no arrests were made, they were all criminal investigations.

After the hearing, PHAR staffer Brandon Collins said he was disappointed with the ruling, but felt the judge seemed to encourage the idea that the information could be made public eventually.

“I think I was expecting something different from the narratives,” he said, “and why decisions were made.”

Updated 10:40am September 12 to clarify Longo’s testimony on not releasing the narratives.