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:
Quarterly, yearly and biannual reports produced by the department's internal review board for the last five years.
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:
Quarterly, yearly and biannual reports produced by the department's internal review board for the last five years.
Data provided to the internal review board used to assist in determining if subordinates of certain supervisors tend to be employees frequently identified by the internal review system.
A copy of the central log of complaints maintained by the State Police.
According to the six-page public report produced by the professional standards section in 2009, 13 troopers were dismissed that year based on sustained allegations, up from three the previous year. An additional 19 resigned prior to discipline. There were a total of 112 incidents where action was taken in 2009, according to the report.
The number of total complaints for the department has gone down, from 257 in 2007 to 165 in 2009. Of the 226 allegations contained in those complaints, about 50 percent were sustained and 24 percent were not sustained. Only 6 percent were exonerated.
After the initial FOIA request was mailed May 25, 2010, the Gazette tried several times to get the information before filing the lawsuit in November.
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, 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.
Reach Gary Harki at gha...@wvgazette.com or 304-348-5163.
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