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Sheriffs routinely ignore FOIA

IN October, a Gazette reporter visited the Mercer County Courthouse in Princeton to review and copy a week's worth of daily log sheets. The sheets show the calls Mercer County deputies respond to during each shift.

Those records are confidential, Mercer Deputy Randall Earnest told the reporter.

Earnest offered to allow the reporter to review individual incident reports, but not a whole week's worth. He also offered to copy them for $20 each.

Earnest said he did not need to see a copy of West Virginia's open-records law. Nor did he want the visitor's written Freedom of Information Act request for the daily logs.

"I don't need any of that," Earnest said. "These records are not public."

The reporter was taking part in a statewide audit of public officials and their compliance with the open-records law.

Earnest's department flunked the test.

Nearly two-thirds of the sheriffs didn't respond to a letter a reporter left at their office. The few sheriffs who did respond to reporters' requests said the information was confidential.

"Sheriffs did horribly," said Terry Wimmer, Shott Chair of Journalism at West Virginia University and coordinator of the project for the Associated Press Managing Editors Association. "Most sheriffs, it appears, operate under the assumption that incident reports are not public records. That assumption is wrong."

In 1994, the state Supreme Court ruled that police incident reports are public records.

In Ogden Newspapers vs. Williamstown, the justices said that such information as names, dates, times and places don't compromise an investigation and should be released to the public.

"The burden of proof is on sheriffs to show not only that the report is part of an investigation, but its revelation would compromise that investigation," Wimmer said. "Ignoring a public-record request is not proof."

In the Ogden case, reporters from the Parkersburg Sentinel asked Williamstown police officers for an incident report about a fight between two juveniles. The officers said the reports weren't public records because juveniles were involved.

But the justices said police couldn't deny incident reports because a crime involves juveniles. The report must be provided, the justices ruled, with the juveniles' names withheld.

The justices also ruled in the case that police conduct public business when they respond to incidents and write reports for a public law enforcement agency.

Earnest believes he knows the public-records law and disagrees with his failing grade.

"I told [the reporter], by the law, when he could look at the records. I advised him of the specific time and place," Earnest said in a phone conversation last week. "You can come on down here to talk to me or send him back down here. I don't want to talk about this on the phone and there isn't a law that says I have to."

Then he hung up.

Denying it

Mercer County sheriff's officials aren't alone in their reaction to a public-records request by newspaper reporters.

Monongalia Sheriff Joe Bartolo conducts a model operation in one respect. He keeps crime reports in a room where the local media can review them.

"We have the newspaper come in here every day and go through the reports," he said.

But Bartolo and his employees did fail to answer the FOIA letter left with his office.

Under state law, public officials must respond to a request within five days by either providing the documents or denying the request in writing.

Bartolo said he didn't know about the request. He said his employees routinely handle public-records requests and always respond with a letter, even if they deny the request.

Sheriffs violated the FOIA law more than other officials. County clerks and county commission employees routinely granted reporters' requests without asking for a reason or name. The law says officials can't require a person to give his or her name or a reason in order to receive public documents.

Sheriffs from the following counties also failed to respond to letters left by a reporter: Barbour, Boone, Calhoun, Clay, Gilmer, Greenbrier, Hampshire, Jackson, Kanawha, Logan, Marion, Mason, McDowell, Mineral, Mingo, Monroe, Pleasants, Preston, Raleigh, Randolph, Taylor, Upshur, Wood and Wyoming.

Calling in the FBI

Don McCourt was suspicious - rightfully so, he said - when a young woman came into his office in October and asked for documents that describe the calls his deputies respond to each shift.

"That's confidential information," said McCourt, Webster County's emergency services director. "Someone could use that information to plan a crime or terrorist attack."

Days later, McCourt said he used his office as the county's emergency services director to arrange an FBI background check on Kelly Regan. He tracked her to the Gazette newsroom.

"Gotcha," he told Regan when she answered the phone.

In a recent interview, McCourt said his actions were justified.

"I wanted to find out who she was," McCourt said. "We profile people that we don't know, we've never seen and have never lived in our county. It's a more professional way to do business."

McCourt insisted that Regan wanted information she shouldn't have. Regan had already asked Webster sheriff's office officials for the records, but they told her to go to the 911 dispatch center.

So she did, but the dispatchers refused to give her the information.

In several counties, sheriff's deputies told reporters who conducted the FOIA audit to review crime logs at the 911 center.

McCourt said he didn't know why sheriff's deputies told Regan to come to his office when deputies keep their own record of calls.

‘Community security'

Sheriffs often refuse to release public records because they say the information is under investigation and therefore confidential.

Ohio County Sheriff Tom Burgoyne said he and his employees share information with reporters unless it is part of an investigation.

"Sometimes you have stuff that is in the report that shouldn't be looked at by the media," said Burgoyne, a former FBI agent. "If it's under investigation, we don't give it out to anybody."

Of the sheriffs who responded, 37 percent wouldn't release reports and cited exemptions, such as under investigation, as the reason for their denial.

One of Burgoyne's employees told a reporter the incident reports "are not open to the public." The official then told the reporter, "You can read it in the paper."

The reporter couldn't leave the FOIA letter because Burgoyne's employee physically turned away and refused to discuss the issue further.

Burgoyne said he didn't know about the reporter's request or his employee's behavior. But he said his office routinely shares information about arrests.

For example, Burgoyne would release the name of a person arrested for DUI. But he wouldn't release the other passengers' names, Burgoyne said.

"It could be detrimental to them," the sheriff said.

Webster Sheriff Caroline Clayton said she doesn't release incident reports or complaints.

"Anything in my office is confidential unless the prosecutor tells us we can show it," she said. "There are names on those reports that are confidential."

Webster Prosecuting Attorney Dwayne Vandevender agrees. "You're not going to be able to get a police report until everything is done," he said.

McCourt says the issue is security. He said his records aren't open for just anyone to review and to possibly use to threaten the community.

"I have the confidence of the public in my hands," McCourt said. "Why should I disclose the source of the security of our entire community to someone I've never seen?"

If someone was looking for a specific report or specific information about an incident, then McCourt said he would be happy to help.

"I'm not trying to hide anything. We don't hold back information." McCourt said. "If you want to know the facts of a specific call, we'll give you as much info we can."

A more-informed area

Some sheriffs complied with the public-records law, the audit shows.

Eleven percent of the sheriffs gave reporters the information when they first asked for it. Another 7 percent of sheriffs provided the information to the reporter on the second request.

Another 5 percent of the sheriffs gave the reporter the information after he or she left a FOIA letter.

In Berkeley County, a reporter only had to ask once for incident reports. "We operate an open-door policy here with the public," said Berkeley Sheriff Randy Smith. "They are welcome to come in here anytime, and someone always tries to answer those questions or complaints and get things resolved. That's why they call us public servants."

Smith said he isn't sure why some of his colleagues don't respond to public-records requests.

Location could have something to do with it.

"We live in a unique area of the state. We're 70 miles from D.C.," Smith said. "I think the area itself is more informed" about the law.

Berkeley County has a larger population and therefore county officials get more requests for records than in other counties, Smith said.

Smith says he uses common sense when he decides to deny or grant public-records requests.

"The public is entitled to almost all information unless there is reason for safety or secrecy because of an ongoing investigation," he said.

Staff writer Lawrence Messina contributed to this report. To contact staff writer Rachelle Bott, use e-mail or call 348-5156.


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