No more ‘no way’ on all police investigative records

February 24, 2021 12:01 am

Police closed Broad Street in Richmond to traffic during a pro-gun rally on Monday, Jan. 18, 2021. (Ned Oliver/Virginia Mercury)

We don’t have to. So we ain’t gonna.

That’s been the response by law-enforcement agencies in Virginia to requests for records and details from the public, virtually all of the time. The state’s feckless Freedom of Information Act provides an easy escape hatch for many government agencies, including police. 

Unless FOIA requires police departments to release information, the departments have used their “discretionary” authority to say “no,” time and time again. It’s a default posture that’s maddening — and ultimately erodes trust in the people in uniform.

So if the media want the names of those injured in a shooting? No. Can police tell us the motive in a crime, even when the police investigation is still early? Uh-uh. What about whether the suspect knew the victim — giving neighbors who live near the crime scene less fear? 

Pound sand, taxpayers.

That dismissive practice would change, at least somewhat, if a bill sponsored by Del. Chris Hurst wins passage in the General Assembly and is signed by the governor. 

The Montgomery County Democrat’s legislation requires public officials to release records from closed criminal cases. The change is reasonable and can inform the media and victims’ families more thoroughly than what happens now. 

The Virginia Mercury, citing the Innocence Project, reported that in most states and at the federal level these records are open and accessible to the public with just a handful of exceptions. The commonwealth should finally join the majority.

Hurst is a former journalist. (He is sadly known for the fact his girlfriend, a TV reporter in Roanoke, was shot dead on live television in 2015.) 

Hurst’s bill passed the House, but a Senate committee made a few changes, including allowing officials 120 work days to respond to requests for criminal investigation records. If the entire Senate passes it, the legislation would head to a conference committee to negotiate the differences.

Not surprisingly, prosecutors and some police organizations, including the Virginia Association of Chiefs of Police, still oppose it. That’s par for the course for groups that don’t have to justify why they’re concealing information, even long after cases have ended.

Similar bills have failed repeatedly over the years, Megan Rhyne, executive director of the Virginia Coalition for Open Government, told me Tuesday. “What we have seen is police departments in particular,” she said, “using the discretion the law gives to routinely withhold any and all records from investigative files … that no longer present a danger from releasing.”

She believes the recent testimony of relatives of the 12 victims shot dead at the Virginia Beach Municipal Center in 2019 may have swayed some legislators. Family members told legislators they’ve been blocked from records related to the criminal probe. 

If there are still details that could jeopardize witnesses or crime prevention, then “Open the file. Open the boxes,” Rhyne said. “Look through it, and figure what can be released” — instead of the knee-jerk decision to automatically reject requests.

That’s been the default response much too often. Nearly 15 years after a tragedy in Norfolk I covered, police and prosecutors still won’t turn over the full investigative files in that case. 

In May 2006, Norfolk Police Officer Seneca Darden was in plainclothes when he went to a disturbance in a public housing neighborhood. Officer Gordon Barry — not knowing Darden was a fellow officer, and thinking he was a gun-wielding suspect — fatally shot Darden. 

Darden was Black, Barry is White, and race was an undercurrent in the investigations and discussions among Norfolk residents. Two probes later cleared Barry of wrongdoing. 

One other thing: It was the first time in the history of the Norfolk Police Department that one officer had killed another in the line of duty.

Jack Doyle was Norfolk’s chief prosecutor at the time, and I attended the news conference on his decision not to file charges. (Doyle later became a Norfolk circuit court judge.) 

Doyle answered questions that day, of course. He also released an eight-page summary of the Virginia State Police investigation, his legal analysis and conclusion. 

But neither the Norfolk Commonwealth’s Attorney’s Office nor the city’s Police Department has ever released the full investigation, which filled four binders and included witness statements, department policies and procedures and other information. 

I was an editorial writer and weekly columnist at The Virginian-Pilot then, and I urged law-enforcement officials to be more transparent. After all, just because they could withhold information, they had the leeway to do much more. 

I didn’t sway those officials in 2006. Their decision was a disservice to the people of Norfolk.

When I asked this week about the Seneca Darden probe, spokespersons for both offices told me they couldn’t release the full investigation. A police spokesman cited the criminal code section that allows discretionary withholding; I could make a FOIA request, he advised.

Remember, this is more than a decade after the shooting. I don’t need to waste my time for yet another “discretionary” rejection. 

That’s why Hurst’s bill is critical. Police cases that have wrapped up deserve public examination. Citizens should be able to judge for themselves how law enforcement investigated their own members, homicides and other crimes.

The switch would go a long way in bolstering trust among the populace. And it would go a long way in boosting credibility in our police departments, too. 

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Roger Chesley
Roger Chesley

Longtime columnist and editorial writer Roger Chesley worked at the (Newport News) Daily Press and The (Norfolk) Virginian-Pilot from 1997 through 2018. He previously worked at newspapers in Cherry Hill, N.J., and Detroit. Reach him at [email protected]