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One of the less noticed features of the Virginia Way is the long-running tendency of the commonwealth’s leaders to conduct their decision-making behind closed doors. While the Virginia Freedom of Information Act presumes all government business is by default public and requires officials to justify why exceptions should be made, too many Virginia leaders in practice take the opposite stance, acting as if records are by default private and the public must prove they should be handled otherwise.
In this feature, we aim to highlight the frequency with which officials around Virginia are resisting public access to records on issues large and small — and note instances when the release of information under FOIA gave the public insight into how government bodies are operating.
Chesterfield police case hinges on meaning of ‘undercover’
The Chesterfield County Police Department’s undercover operations are so extensive the agency needs to be able to hide the identities of virtually all of its rank-and-file officers, a police major testified in a FOIA case Thursday morning.
Transparency activist Alice Minium is suing Chesterfield officials after they redacted the names of 521 police officers at or below the rank of lieutenant using FOIA exemptions meant to maintain the secrecy of undercover policing.
The county has justified that exemption by arguing virtually all of its officers could be asked to do undercover work, even if that only means using an unmarked vehicle or wearing plainclothes. Minium’s attorney, Andrew Bodoh, said the county is improperly expanding a small transparency exemption to claim the power to shield the identity of every police officer regardless of their actual job duties.
As she testified in Chesterfield Circuit Court, police Major Andrea Riesmeyer explained that she once did undercover work by posing as a prostitute. Having her name, face and affiliation with the police department published in Minium’s website, OpenOversightVA, makes it nearly impossible to do that sort of work in the future, Riesmeyer said. And the same concern applies to every officer, she said, who at any point might need to conceal their true identity in order to fight crime.
“That hinders our ability to do what we need to keep our community safe,” Riesmeyer said.
On cross-examination, Bodoh got Riesmeyer to acknowledge that releasing the police roster with the names listed wouldn’t actually reveal who is working undercover at any given point.
“We believe that they are withholding the names of people who are not undercover officers,” Bodoh said, adding that the convenience of maximizing anonymity for police officers shouldn’t outweigh provisions in FOIA indicating the names and salaries of public employees should almost always be considered public information.
Chesterfield officials said their definition of undercover can extend to officers performing regular patrol or surveillance duties in an unmarked vehicle or in plainclothes.
Bodoh argued there are distinct categories of undercover work and insisted the term “undercover” should be limited to situations where officers are playing a role or assuming a fake identity. It should not, he said, be construed to mean any situation in which a clearly identifiable police officer wearing a name tag or badge wants to keep a low profile or avoid making their presence obvious.
Because “undercover” isn’t defined in state FOIA law, both sides in the case said Thursday that the General Assembly may eventually have to write a clearer definition into the law.
Judge Jayne Pemberton asked the two parties to file additional legal briefs on the matter and said she expects to issue a ruling after that occurs.
Newport News official cautioned colleague about triggering FOIA
Officials in Newport News have declined to release over 100 pages of documents related to a seemingly botched response to a shooting victim who died from his injuries.
Records obtained by The Daily Press indicate officials were taking pains to keep key documents confidential.
Text messages the paper received indicate city officials have an internal investigative report that they didn’t want to go public.
When Mayor Philip Jones asked City Manager Alan Archer for a copy of the report last November, the paper reported, Archer offered instructions on how he could get the document without making it disclosable under FOIA.
“It would not be advisable for me to send such a document to you by email,” Archer wrote. “The document would not be exempt from a FIOA (sic) request unless the City Attorney’s Office sent it you under client attorney privilege.”
FOIA shakes loose names of Loudoun school safety panelists
When Loudoun County Public Schools formed a “Blue Ribbon Panel on School Safety” last year, officials initially refused to identify who was on it.
In April, according to the Loudoun Times-Mirror, a schools spokesman said he would not reveal the names due to “security reasons.”
The mysterious panel recommended putting police officers or security guards in all county elementary schools, a policy suggestion that stoked debate and pushback from critics who argue a law enforcement presence is unnecessary and potentially detrimental to students.
After the Loudoun Times-Mirror filed a FOIA request, officials released the names of the panelists, showing the group to be a not-particularly-surprising mix of education, law enforcement, emergency management and mental health professionals.
Have you experienced local or state officials denying or delaying your FOIA request? Tell us about it: info@virginiamercury.com
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