CHARLESTON, W.Va. -- The Charleston Gazette filed a memorandum on Monday in support of a request for summary judgment in its lawsuit requesting records detailing how the State Police handles allegations of abuse and misconduct.
The lawsuit, filed in Kanawha Circuit Court in November, requests reports produced by the department's professional standards section and comes after requests for the public information from State Police and the state Department of Military Affairs and Public Safety were repeatedly denied.
Since 2006, State Police troopers have been accused of police brutality at least seven times and sexual assault at least twice. None of the allegations have resulted in charges against a trooper.
State Police spokesman Sgt. Michael Baylous said the agency had no comment on Monday, as they had not had a chance to look at the memorandum and because it is an ongoing civil matter.
In the memorandum, Gazette lawyers Rudy DiTrapano, Sean McGinley and Rob Bastress, from the firm the firm DiTrapano, Barrett and DiPiero, argue that the State Police can't cite an administrative rule created by the agency as a reason that the information is exempt from the Freedom of Information Act.
Legislative rule 81-10-6.2, part of the section that governs the State Police, says documents related to internal investigations, "shall not be released ... except by the direction of the Superintendent or by order of a court with competent jurisdiction."
But that rule was created by the State Police and isn't the same as legislation enacted by the Legislature, according to McGinley.
"It is basic hornbook law that an agency cannot usurp the authority of the Legislature by adding restrictions to a statute which are not there," McGinley writes in the memorandum.
He also writes that the State Police internal investigation statistics do not fall under the FOIA law's narrow exemptions. He says that their assertion that the records fall under the exemption for "records of law enforcement agencies that deal with the detection of a crime" doesn't apply because virtually all the statistics being requested are for cases that are closed.
The original FOIA requests were mailed to then-State Police Superintendent Col. Timothy S. Pack on May 25. They requested: