Justices hear arguments over keeping State Police internal investigations secret
CHARLESTON, W.Va. -- It's troubling that people do not know what happens to police officers who are investigated for allegations of abuse and misconduct, state Supreme Court Justice Margaret Workman said Tuesday.
An attorney for The Charleston Gazette argued that the public interest outweighs any privacy claims State Police are making in keeping hidden information about their investigations of their own officers. But releasing that information would be an invasion of privacy under the Freedom of Information Act, a State Police attorney argued.
"It's troubling that policemen, who I respect tremendously and most of us do, have been imposed an incredible amount of authority to enforce the law through force," Workman said, "And if the public doesn't have a right to know anything about any of these complaints, then that seems like it's not in the spirit of FOIA."
State Supreme Court justices heard arguments in a lawsuit appeal on Tuesday.
A lawsuit filed in 2010 for the Gazette by lawyer Sean McGinley and the firm DiTrapano, Barrett and DiPiero had asked for reports produced by the department's Professional Standards section, which handles internal investigations. In May 2012, Kanawha County Circuit Judge Jennifer Bailey sided with State Police in keeping that information hidden, saying, "The public interest does not require disclosure."
McGinley said Tuesday that State Police could not pinpoint what privacy claims they make in not releasing information from the agency's Central Log of Complaints.
"Exemptions should be liberally construed in favor of disclosure," he said.
State Police attorney Virginia Lanham said the Central Log of Complaints is a "very fluid document" that changes throughout the investigation process.
It contains information about officers who have been flagged for frequent misconduct allegations or have more than three use-of-force incidents. There are more than 1,200 entries in the agency's central log of complaints, she said. Those files contain information about an officer's health records and what stressors they may face on and off duty.
McGinley said the Gazette's original request said names could be redacted to bypass the privacy exemption. But the State Police, he said, decided that the entire log fell under a right to privacy. The agency alone is deciding what information benefits the public, he argued.
McGinley said previous Gazette lawsuits have required the release of misconduct allegations against doctors and lawyers.
"The exact same privacy arguments were made and this court rejected them," McGinley said. "There's no reason to treat police officers different than a doctor or a lawyer."
Lanham said the State Police has never been required to release details of the investigations. State Police are accountable because they are required to release details of those investigations during civil litigation or as exculpatory evidence.
Any decision the Supreme Court takes in the case could set precedence in how the public learns about allegations of police conduct in the future. The Supreme Court is expected to rule on the case by the end of the year.
The State Police did not have an internal investigations unit until a 1995 state Supreme Court ruling forced them to.
In 1990, 17-year-old Billy Ray Casto, of Harts in Lincoln County, said Trooper Joe Parsons beat him with fists and a flashlight. A trooper in Parsons' detachment was assigned the case and soon found Casto's claims to be unsubstantiated.
Charleston lawyer Dan Hedges and Morgantown lawyer Franklin Cleckley went to the state Supreme Court on Casto's behalf.
The Supreme Court asked a criminal justice professor from Temple University, James J. Fyfe, to review the State Police's procedures when a trooper is accused of abuse. Fyfe recommended that outside groups and citizens participate in such investigations.
Supreme Court justices ignored that recommendation when they ruled on Casto's petition in 1995. In a unanimous, unsigned opinion, they ordered the State Police to ensure a thorough investigation of abuse allegations be conducted by a neutral party. The court refused to require a civilian review panel, saying the State Police superintendent would still make the ultimate decision.
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