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When does confidentiality trump the public’s right to know? Virginia received an “F” in a State Integrity Investigation analysis of all 50 state’s laws and practices related to government transparency and corruption. Transparency advocates want greater public access to police records, while law enforcement officials worry making case files public could endanger victims and witnesses. We’ll consider both sides of the issue and whether there’s common ground to be found.
- Daniel Metcalfe executive director, Collaboration on Government Secrecy at American University’s Washington College of Law
- John Edwards Virginia State Senator (D-21)
- Michael Pope Northern Virginia reporter, WAMU; political reporter, Connection Newspapers; Author, "Hidden History of Alexandria, D.C." (The History Press)
- Dana Schrad Executive Director, Virginia Association of Chiefs of Police
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Freedom of information laws are designed to give the public greater access to the inner workings of government agencies. They've been in effect with varying degrees of success for decades, but a recent report gave Virginia an F when it comes to public access to information, and some transparency advocates are zeroing in on one area in particular: access to police records.
MR. KOJO NNAMDIJoining us in studio to discuss this is Michael Pope. He is WAMU's Northern Virginia reporter and writes for Connection Newspapers. He's also the author of the book "Hidden History of Alexandria, D.C." Michael, good to see you again.
MR. MICHAEL POPEThank you.
NNAMDIJoining us also in studio is Daniel Metcalfe. He is executive director of the Collaboration on Government Secrecy at American University's Washington College of Law. He was also the founding director of the Justice Department's Office of Information and Privacy. Dan Metcalfe, thank you for joining us.
MR. DANIEL METCALFEGlad to be with here.
NNAMDIJoining us by phone from Richmond, Va., is Dana Schrad, executive director of the Virginia Association of Chiefs of Police. She's also an attorney and a former reporter. Dana Schrad, thank you for joining us.
MS. DANA SCHRADIt's my pleasure.
NNAMDIIf you're an interested in joining this conversation, you can call us at 800-433-8850. You can send email to email@example.com. Have you ever filed a FOIA request for records from Virginia police? What was your experience? You can send us a tweet, @kojoshow, or go to our website, kojoshow.org, and ask a question or make a comment there. Michael Pope, the issue of access to police records in Virginia is one that you've been covering for a few years. How did the recent state integrity investigation aid your coverage?
POPEWell, the state integrity investigation gave Virginia an F largely because there was this reluctance to share all kinds of information. One of the areas the state integrity investigation looked at was police documents, which is a topic that I've been looking at for several years because I started my career in Florida, which has this sunshine law, making available all kinds of documents.
POPEAnd, in fact, one of my first jobs in the newspaper that I used to work for was driving to the police station every day, picking up a large stack of documents, handwritten documents from the police officers who would detail, you know, what they were doing. These became very valuable documents in our newsroom because we got to sort of see what our local police department was doing at a very kind of micro level. And when I moved to Virginia, I found out that they were unavailable, and so...
NNAMDIHow did you find out they were unavailable in Virginia when you decided to proceed with your Florida routine and simply go up and ask on a daily basis for records? How were you treated?
POPEWell, I have to say most police people that I know are very friendly, and I love talking to them. And so I initially started by just asking the chief of police in Alexandria for these kinds of documents, and he said that I wasn't able to get them essentially. And he pointed me...
NNAMDIYou wanted to go pick up police incident reports every morning like you did in Florida.
POPERight. I sure did. And so he was nice about it but said that, no way, you're not going to get them. So I started strategically filing...
NNAMDIWhat are you talking about, is what the expression you got.
POPESo I started strategically filing Freedom of Information Act requests for a variety of different kinds of offenses. Like, in fact, there was a series of burglaries that happened in my neighborhood, so I filed four requests for those. It was denied. I filed a Freedom of Information Act request for a police-involved shooting -- the dashboard camera footage. That was denied. And so what I found was that in areas big and small, from a police-involved shooting all the way down to a burglary, that these documents were shielded from view in cases that are open, even in cases that are closed.
NNAMDIDan, there are federal- and state-level freedom of information laws. How do they differ, and which ones cover this issue?
METCALFEWell each and every state, including the District of Columbia, has its own version of the federal Freedom of Information Act. They vary from state to state, in some instances just by a little bit and in some instances by a great deal. And there are states where the variance between their provisions and those of the federal FOIA are almost notorious. The gentleman here mentioned -- Mike talked about Florida.
METCALFEAnd Florida is probably the exhibit A for that in that when Janet Reno came to Washington to be attorney general almost 20 years ago -- she had experience, too, in Florida -- and was just amazed that there was so much more information released down there than in Washington under the federal FOIA. It's not known as the sunshine state for nothing.
METCALFEAnd I would dare say that, among the 50 states, if you wanted to choose, too, for the largest gaps, so to speak, the biggest disparity in the treatment, Florida and Virginia would be an excellent choice. So Mike just happened to encounter that difference, I think, based upon his own personal circumstances.
NNAMDIMichael, a lot of FOIA requests come from reporters, but you're not the only one seeking information. Who else is filing these requests?
POPENeighborhood associations frequently file Freedom of Information Act requests -- parent-teacher associations, all kinds of citizen activist groups. You know, one thing that -- one trend that you see lately is police agencies and local governments for that matter deciding that they're going to start charging for staff time and compiling these Freedom of Information Act requests.
POPESo a good example of this is emails that are available to the public, and you can file a Freedom of Information Act request for them. But, depending on how you word your request, you might get a bill for thousands, tens of thousands of dollars of staff time that it takes the governments to put together a response to your Freedom of Information Act request.
NNAMDIDana Schrad, while transparency advocates are pushing for greater access, law enforcement officials seem to be in favor of keeping things as they are. Why is that?
SCHRADWell, I think there's a great deal of balance. It's in the Virginia law that takes some other things into consideration that haven't been mentioned yet. For example, we have provisions in our Virginia FOIA law that protect victims and witnesses and their statements being released without their permission. So we've taken victims' rights into a great deal of consideration in Virginia when looking at our FOIA laws.
SCHRADThe other thing, too, is there's a lot of difference between sort of talking about law enforcement records in a blanket way and then getting into the nuances of what's in a law enforcement investigative record because in Virginia, a law enforcement criminal incident report, which is a specific set of information, is supposed to be released by the law enforcement agency and should be made available.
SCHRADIt is when you get into the nuances and the details in their criminal investigative report that you have now in Virginia still the discretion of law enforcement agencies to determine whether or not releasing information from an investigative file would either hamper an investigation or will put a victim or witness in harm's way.
NNAMDI800-433-8850, and, in case you're just joining us, we're talking about police transparency in the Commonwealth of Virginia. The voice you just heard was that of Dana Schrad, executive director of the Virginia Association of Chiefs of Police. She's also an attorney and a former reporter. Daniel Metcalfe is executive director of the Collaboration on Government Secrecy at American University's Washington College of Law.
NNAMDIAnd Michael Pope is WAMU's Northern Virginia reporter and writes for the Connection Newspaper. You can call us at 800-433-8850. If you're a current or a former law enforcement official, we'd like to hear whether you think the public should have greater access to police records. Michael Pope?
POPESo I'd like to touch on something that Dana Schrad just talked about, which is protecting victims' rights. The unavailability of these documents actually cuts both ways, and sometimes victims and their families are denied access to documents using the same part of the Virginia Freedom of Information Act that denies the public. One case I came across involved a shooting that took place in Delray, in the Delray neighborhood of Alexandria, involving a 19-year-old immigrant from Togo who was killed.
POPEAnd his father was interested in getting the documents, specifically so he could go back to Africa and have a memorial service and find out what happened to this 19-year-old. Well, the police were unwilling to share the document. A white-shoe law firm here in D.C. -- Hogan Lovells -- got involved.
POPEThey submitted a FOIA request, and it was even denied to this law firm, the report of what happened there. So even in this case where there's the family members of a victim, they're also denied access to these documents under the same part of the law, so that's also something to think about when you consider a victim's rights.
METCALFEWell, Kojo, I think I can speak to both the legal on the policy aspects of that particular example first and foremost because they don't vary much at all between the federal FOIA and how it operates and the Virginia FOIA in this case. The first thing will be mentioned is that in law enforcement files, you have a number of interests that are implicated in the information, putting aside for a moment the institutional interests of the law enforcement agency, such as with respect to hampering an investigation, if the information is disclosed.
METCALFEYou have two very large personal interests. One is the interest of an informant, a confidential source, and there's protection for that under most FOIAs, as well as under the federal government. But the second is the more nuanced -- to use that word -- area of protection of personal privacy, and that's where victims and individuals, even targets of investigations, all sorts of different people who find themselves identified in law enforcement records, their interests come into play.
METCALFENow, there's a basic principle that is applicable in the federal law, in state laws, just across the board that, although there is -- there are privacy exemptions that an agency can withhold information, the disclosure of which would -- could reasonably expect to damage the personal privacy interests of the individual, you'd never invoke that exemption, an agency would not, to protect the individual from him- or herself.
METCALFESo if the individual whose subject to the file makes the request and is verified as such, so it's known it's not someone fraudulently acting that way, then the privacy protection would not stand as a barrier. Now, in this particular case that Mike mentions of the Delray incident, the victim, as I understand it, was deceased, and that's where another very important principle comes into play. And that is, as a general rule, with limited exception that we can go into if you like, that is a general rule, dead people have no privacy.
METCALFEAnd there is therefore no basis for a government, federal or state, to invoke a personal privacy exemption as a barrier to disclosure of any of the information that's in the record. In this case, the victim's family should have been able to get access to any information the disclosure of which would have invaded the personal privacy of the victim him- or herself when alive but not after death.
NNAMDIMike, you wanted to add...
NNAMDI...before I go to Dana?
POPEThe issue here is that the language of the Virginia Freedom of Information Act gives these police agencies the ability to withhold a long list, which includes complaints, memoranda, correspondence, case files, reports, witness statements and evidence. So you listed some compelling reasons, but the letter of the law here gives these police agencies the ability to withhold all this stuff and...
METCALFEI'm curious, Mike. Is that implemented in a categorical way by the agencies as a matter of policy, as well as by the courts in any cases that come up? Is it made purely that categorical without looking at the substance of what's actually in that type of record?
POPEThat's my understanding, yes. The police agencies choose to use this exemption in all cases without exempt -- without any kind of exclusion because they want to make sure that they maintain this ability to withhold the documents.
NNAMDIDana Schrad, you've heard a lot. Do I even need to ask you a question?
SCHRADWell, I was just going to say that one of the other things we need to make a distinction about for the listeners is the difference between confidentiality and privacy rights. And privacy rights issue is something very different from a promise of confidentiality -- a promise of anonymity. And that's something that doesn't necessarily die with the death of, say, the victim or the informant.
METCALFEDana's exactly correct about that.
SCHRADYes. So that's something I -- and I think that's probably one of the reasons why this can very confusing for a lot of people is understanding that some of these exemptions and discretion given to law enforcement are done for a variety of reasons, not only to protect the integrity of investigation, but also to protect a promise of anonymity. And I've mentioned this before in meetings, and that is when I was a reporter and I made a promise of confidentiality to someone who talked to me as a reporter off the record that I always protected that, and it didn't expire when the story was published or went on the air.
SCHRADAnd to this day, even though it's been many years since I was a reporter, I keep that information confidential because I made that promise. And law enforcement very often has to make the same kind of promises in order to get the cooperation of witnesses and victims in order to solve crime.
NNAMDIWell, from the point of view of a non-lawyer who has seen all kinds of documents with large portions blocked out, documents that were obtained as a result FOIA request, if law enforcement can have the discretion not to release the document, doesn't it also have the discretion under FOIA to release the document and simply black out the names and title of people that doesn't want revealed?
SCHRADAbsolutely. They have not only that discretion, but that is what they're advised to do. I mean, Virginia FOIA law is no different than federal or any other state, which is that when it comes to public records, there is a predisposition that they are public records releasable to the public, and the exemption applies after you determine whether or not make that determination that they shouldn't be released. So, in other words, all records are public unless there's a reason to withhold them.
SCHRADAnd we advise all agencies to use due diligence in applying the statute and the intent of the policy in Virginia to make sure that they're not just withholding things wholesale, but also making those determinations before they're released as to whether or not they are in any way compromising the safety of an individual or an integrity of an investigation.
NNAMDIGot to take a short break. When we come back, we'll continue this conversation. We'll be joined by Virginia State Sen. John Edwards. But you can still join the conversation. If you've already called, stay on the line. We have the lines open at 800-433-8850. Where do you think the line between confidentiality and the public's right to know lies? 800-433-8850. Send us a tweet, @kojoshow, or email to firstname.lastname@example.org. I'm Kojo Nnamdi.
NNAMDIBack to our conversation about Virginia police transparency. We're talking with Dana Schrad, executive director of the Virginia Association of Chiefs of Police. She's also an attorney and a former reporter. Michael Pope is currently a reporter. He is WAMU's Northern Virginia reporter. He writes for Connection Newspapers and he's author of the book "Hidden History of Alexandria, D.C."
NNAMDIDaniel Metcalfe is in studio with us. He is executive director of the Collaboration on Government Secrecy at American University's Washington College of Law. He was also the founding director of the Justice Department's Office of Information and Privacy. And joining us now by phone from Roanoke, Va. is John Edwards. He is a Virginia senator who has represented the Commonwealth's 21st District since 1996. He's a Democrat. He practices law in Roanoke. He's a professor at the University of Virginia Law School. John Edwards, thank you for joining us.
SEN. JOHN EDWARDSThanks for having me.
NNAMDIEven before you entered the Virginia Senate, was this an issue you had come across in your career as a lawyer?
EDWARDSAbsolutely. I've been a prosecutor, defense attorney as well, and there are two issues here. One has to do with criminal defense attorneys getting the information they need, and Virginia is known as a limited discovery state. There's very little information prosecutors have to turn over. Of course, under Brady v. Maryland, they have to turn over anything that will be materially exculpatory. But sometimes -- it's like beauty. It's in the eye of the beholder. But, right now, we're talking about the public's right to acquire police incident information or police records.
EDWARDSI've introduced a bill that's being studied that would simply say under FOIA, Freedom of Information Act, the public ought to have a right to get police record once the case is over. Now, the question is when is a case over? Law enforcement would have discretion as to decide if the case is actually over. If there is a dispute about it under a FOIA request going to court, a judge could hear the evidence in camera as to whether or not -- that is, behind closed doors as to whether or not the case is actually over or not because you couldn't abuse your reasonable discretion.
EDWARDSBut it would be a discretionary decision as to whether or not the case is over. Now, once a case is over, still under FOIA, under Freedom of Information Act, two types of information could -- would not be disclosed. One is, as was mentioned, in the case of confidentiality being promised a witness. As a former United States attorney, I promised confidentiality, and the FBI has promised confidentiality to witnesses from time to time which -- in case you don't use the witness as a witness in court.
EDWARDSBut if somebody who is providing important information but you want to maintain the confidentiality of it, or maybe there's a witness who will give you information that simply would not come forward otherwise, so you promise some confidentiality, that would remain confidential. The other category of case of information that would remain confidential would be investigative techniques, message, things that would -- that the law enforcement...
NNAMDIPolice tactics, yes.
EDWARDS...uses which could jeopardize some other investigation, in which case that would remain confidential as well. Otherwise, there's really no policy reason why, once a case is over, it shouldn't be made available to the public. I've had (word?) cases, for example, where I represented a victim in a personal injury case and sued the perpetrator of the crime. And the chief of police refused to give me what they had, even though the case was over and the person have pleaded -- found -- was found guilty and the case was over, it was not appealed and so forth.
EDWARDSAnd the reason was simply we have a policy, so you say we have discretion. If we give it to you, we'd have to give information like this to other people. So what I did -- I went to court, and I could subpoena. But once you're in a court, you can subpoena this information, but they require you to go to court. And the case involving the African person that was injured or died, I guess, the -- where the Hogan -- Hartson -- I believe Hogan and -- it's got another name now.
EDWARDSYeah, a law firm, tried to get it through the FOIA. Well, they could've gotten it, I believe, had they gone to court in a legitimate lawsuit of some sort. They could've gotten it that way, not under a FOIA appeal but rather under a other lawsuit where the issue is material. They could've subpoenaed it that way, but that's the problem. You don't always have the -- a court action to use a subpoena (unintelligible) to get the information.
EDWARDSBut the problem with the Virginia statute is the unfettered discretion is now given to law enforcement never to release this information. They can do it if they want, but there are no standards as to when they would...
NNAMDIWell, you introduced the bill to give the public greater access to police records. You introduced it in 2010. What would that bill do, and what's happened to it?
EDWARDSWell, it's been revised several times. I introduced it in 2010, 2011 and then again this year. And it's been revised to simply -- it's being studied. It never passed. It was being studied. And, as I say, what it does is, say, if a case is over, once it's over, then it's got to be released. The police record has to be released, except for those things that FOIA protects anyway which is confidential information. If somebody's promised confidentiality or things, such as police message and techniques, which could -- release it which could jeopardize some other investigation.
NNAMDIOK. First you, Dan Metcalfe.
METCALFEWell, let me say first that I think it's always a very good thing when members of Congress at the federal level who are legislators, such as Sen. Edwards, focuses on freedom of information legislation. There's always the room for improvement with the passage of time and the change of circumstances. We've certainly seen that at the federal level. But in the spirit of the organization that gave the state of Virginia an F overall, I'm going to exercise my discretion as a law professor to give Sen. Edwards' bill a C or C-minus, and I'm going to explain exactly why I say that.
METCALFEOne the positive side, it seemed to me an excellent improvement to take the Virginia State FOIA into the same realm, so to speak, as the federal FOIA Exemption 7, specifically with respect to 7A that says, yes, you can protect ongoing proceedings, the perspective ones. But once the case is over, that interest ceases. So it sounds as if this bill would bring the Virginia law almost exactly in line with the federal FOIA, and I think that would be a very good thing based upon my own experience with it.
METCALFEHowever, there is a but. If I understand Sen. Edwards correctly -- and I know he'll correct me if I'm wrong -- the two exceptions to that after that point in time is reached is confidential source protection, and that's very solid to be sure -- and law enforcement techniques or as we call it the federal FOIA procedures as well -- that doesn't go far enough because it doesn't deal with personal privacy.
METCALFEAnd I can tell you, based upon reviewing the thousands and thousands of FBI records and those of other federal agencies, that when an investigation is completed, there still will be within that existing file many, many items of information, the disclosure of which would cause tremendous invasion to personal privacy interest of people who are investigated.
METCALFEBut nothing came over that, never one forward, of not just witnesses but people collaterally involved of all sorts of types of individuals. So without that privacy protection, carrying forward after the investigation has concluded, I'd say there's a major difficulty that would be encountered.
NNAMDIAnd he has, Sen. Edwards is, that is, had mentioned that it's already been amended several times. Sen. Edwards, is this another amendment that you would consider?
EDWARDSWell, it's my understanding from talking with people's (unintelligible) services that that is that privacy issue is included. Basically, it is already included, I think it is, under Virginia's FOIA, then it is included because the way this was drafted, it just simply takes your discretion away from a law enforcement, from not revealing information that it would otherwise be discoverable or releasable.
EDWARDSAnd -- but there are some built-in in FOIA privacy protections and might -- and maybe I misspoke, but my understanding is that if you promise somebody confidentiality, that would be exempt. If it's a law enforcement technique or procedure, that would be exempt, but also other forms of personal privacy issues which are defined in the act. So I think it would cover that.
NNAMDIThere are a lot of people who'd like get to on on this conversation by phone, but, Dana Schrad, I feel obligated to have you respond to your -- the proposal by Sen. Edwards which it seems would take some of the discretion away from police chiefs in whether or not to disclose information.
SCHRADWell, I had to agree with Prof. Metcalfe. There are some serious concerns about privacy that get to the cooperation of the victims and witnesses when it comes to the concerns they may have about closed investigative files and releasing information of a highly personal nature. This really comes to bear when you deal with people who are victims of sexual domestic violence, that type of thing where, as part of the investigation, the victim's histories are looked at very closely in terms of developing the case.
SCHRADAnd people don't ask to be victims of crime, but their lives are laid open considerably when investigations occur, and that information becomes part of the file as well and...
NNAMDII think our caller in Springfield, Va. has an incident that seems less serious than the ones that you're talking about, but I guess that depends on how you're looking at it. I'll let Lisa speak for herself. Lisa, you're on the air. Go ahead, please.
LISAHi, Kojo. Thanks for raising some great topics. I had an interest in deer hunting and the number of fatalities and accidents that had occurred over the last three years as a result of deer hunting in Virginia. And the police could not had been more cordial or helpful or kind to me, but at the end of the day, they told me that it would cost thousand and thousands of dollars to get the information. And I wondered why it'd cost so much and why it was so hard to get data that wasn't personal but was just data in this information era?
NNAMDIAny idea, Michael Pope?
POPEWell, traditionally, what happens is if you make a Freedom of Information Act request to a government agency that they'll get back to you with a sense of how much it will cost to put together that information. This is the trend I was talking about earlier where governments are now charging for staff time that's involved in putting together, you know, going through emails to find out if they're responsive to the Freedom of Information Act request or not. So this is something that civic associations and PTA groups and journalists have come across in recent years.
SCHRADThe kind of records that Lisa is asking about would require a great deal of research because I think there's a misconception that police agencies have everything computerized and that they can look things up based on search terms just like you would in Google, and certainly that's not the case. Our record systems are not that sophisticated, particularly when you get into the smaller to medium size agency. So it requires essentially hand research of records to do the kind of examination of records that she's talking about.
SCHRADAnd so I think that's where the cost comes in. Is it something that would not be part of is what is currently a regular government service or a regular record keeping of a police agency?
NNAMDIAnd Dan Metcalfe.
METCALFEWell, I certainly can sympathize to a degree with what Dana is saying here 'cause I remember well when I first would defend the FBI in quarter 1977, I met with some people and saw that they had 62 million index cards that were used for their searching process. That was back in the day before anyone can spell the word computer, but under the federal FOIA, by comparison...
NNAMDIWe have a guest who still has index cards in the studio, Michael Pope.
POPEYes. And it looks a little bit more intelligible than some of the ones that the FBI use, but we'll put that -- save that issue for another day. The federal FOIA allows charging for the search process, and it is staff time as Mike says. But as a general rule, that does not enter into -- it does not create enormous burdens. The great burden for the federal government access to FOIA, the federal records is the duplication cost.
POPEBy and large, if the requestor is stuck with large fees, it'll be having to pay 10 cents per page if it's in paper form. And that's what really add up rather than search fees. Agencies at the federal level, whether they're highly computerized or not, have to go through their files efficiently in order to perform their primary mission. Even the smallest police constabulary has to be able to find something quickly in order to make connections for investigative purposes.
POPEAnd I suspect, again, without knowing with certainty, that in some instances perhaps in Virginia at the local level, the police chiefs might be thinking, well, you know, we really think there'd be a lot of work involved here, and we'd rather raise FOIA fees, particularly the search fees, as a bulwark against request, as a disincentive. And we've seen some of that at the federal level. I suspect that might be happening to a much larger extent of Virginia as well.
NNAMDILisa, thank you very much for your call. Let's try another example. Laura in Fairfax, Va. Laura, you're on the air. Go ahead, please.
LAURAHi. Good afternoon. Thank you for taking my call. I appreciate it.
NNAMDIGo right ahead, Laura.
LAURAOh, yes. I was the first on scene of a friend's suicide back in April of this year. And I made the 911 call. And I had been trying without success to get the audio of that call. The case is closed. And -- but I have not been able to obtain that. I am going to be meeting with an attorney, and he is going to try to see if he has bounds to issue a subpoena to try to get the 911 audio. And I just found the process very frustrating. And I was -- I don't understand it.
LAURAI've been told that all the crimes seem to be subject to who's interpreting the Freedom of Information Act law here in Fairfax County. And any input or guidance you could provide me, I would be great -- it would greatly appreciated.
NNAMDIAnd since it was a suicide, the victim -- it was not an attempted suicide. The victim presumably is deceased.
LAURAYes. She was -- the officer, once he had arrived, did CPR, and she remained on life support, but then, yes, she passed away.
NNAMDIDana Schrad -- and then I'll ask the others, including you, Senator -- do individual police departments or sheriff's offices vary in their interpretation of the law or is it pretty standard statewide?
SCHRADWell, we would hope they would not vary in their interpretation. We've done a great deal of training, and our association has developed a law enforcement guide to FOIA that we try to keep updated. So we try to do a lot. But it can be very difficult to understand.
SCHRADAnd particularly in the area of something like a suicide, if there has been essentially no criminal investigative information, there's been no crime alleged, and then they take into consideration the privacy of the family and the individual because it was a suicide, and I -- I can't second-guess the reasons for the law enforcement agency not disclosing that, but that may be part of the rationale.
EDWARDSYou know, my experience -- this is John Edwards -- my experience is it varies tremendously. Some just have an across-the-board we will not disclose anything because we have the right not to disclose. It's purely discretionary in the category of criminal matters. The -- I don't know what -- about the suicide. I mean, there's a statute on suicide, I believe, that makes it a crime. You certainly found that -- assist somebody in suicide. So it may have been they put it in the category as a criminal matter, and we're not going to disclose it. I just don't know.
METCALFEWell, I can tell you that at the federal level, over the years, suicide-related records or even the concept of survivor privacy in general has been a big issue. It began back in 1978 when we protected the privacy of the family of Martin Luther King.
METCALFEAnd over the years, that concept of survivor privacy, the idea that even though the privacy interests of the decedent have expired, that there still could be close family members whose interests themselves could be violated by exceptionally sensitive information is finally recognized by the Supreme Court in 2004, in a case involving the death scene photograph of Deputy White House counsel Vincent Foster.
METCALFEAnd the way things work -- and it's pretty well settled now after all these years -- is that if there's something that's so exceptionally sensitive that its disclosure would greatly harm the interests, really bother enormously the survivors, then that is a basis for withholding it, at least when you balance it against the public interest. I'll give you a concrete...
NNAMDIWell, I'm not being a lawyer here. I'm looking at it simply as a member of the public. From Laura's point of view, I'm the Good Samaritan here. I made the 911 call that brought this to attention. I want to hear my own call.
METCALFEWell, please make no mistake. I can't defend that particular action. I see no legal basis upon which it could be withheld. I'm just talking about the concept in general.
NNAMDIIn general. But I just don't want to get away from Laura's situation.
METCALFEThere is validity to the concept in general. In that particular case, if there's no one alive, either whose interests would be invaded by the privacy -- privacy interests would be invaded by the disclosure of the call, or if the person who's on the phone is the requester, then you never invoke an exemption to protect someone from him or herself, then I don't see what the basis for nondisclosure would be.
POPEIt's significant that Laura can't get these documents or information through the Freedom of Information Act request and she feels the need to have a subpoena, a lawsuit, just to get the documents, this is a trend that I've seen in Virginia, specifically because these law enforcement agencies have these broad exemptions. There's one case I covered recently involving Fairfax County officers shooting and killing a 19-year-old in Arlington.
POPEAnd so, as a result of this, Arlington Police Department conducted an investigation of the Fairfax officers and their actions, wrote a detailed report as to what happened in that incident. And the father of this 19-year-old would like access to that document and can't get it under Freedom of Information Act law the way it exists in Virginia, and so he's forced to consider filing a lawsuit just to get access to this document in the case involving the death of his son.
METCALFEKojo, what Mike just said might go to the very heart of Sen. Edwards' bill because, if I understood him correctly the second time that he described it, he was talking about its primary purpose being to remove the police discretion to withhold or not.
METCALFEAnd if the Virginia law is set up in such a way that -- at least for certain categories of records, regardless of their contents, per se -- the Virginia law enforcement officials have the discretion, the wherewithal legally to withhold something, it seems to me that removing that is an excellent idea. And that may be something that would go a long way, so long as you protect privacy when you remove that.
EDWARDSWell, that's what it is. The bill is designed simply to say, you don't have absolute discretion here, that you have to reveal -- release police records once the case is over now. My bill does not go to -- while a case is still being investigated or while a case may be in the court system, a criminal case may be in the court system. Once it's over, then the discretion is released, and it has -- whatever is available has to be released subject to what FOIA already protects, which is privacy rights, police techniques and so forth, that type of thing.
METCALFEIt sounds like the word discretion, as you're using it, Sen. Edwards -- and I apologize for not being as intimately familiar with the Virginia FOIA or the federal FOIA -- is the legal wherewithal for the police department to withhold something categorically, regardless of content, regardless of an ad hoc determination bit by bit, and letting the chips fall where they may, as it were, as to what's released and what's not.
EDWARDSAnd that's why there's also inconsistency in application of the law because it gives police chiefs and police sheriffs and so forth the absolute discretion not to release it. They can release it. Sometimes they do. Often they don't. And sometimes the reason they don't is the city attorney or county attorney advises them, you start releasing it in one case, you're going to have a hard time explaining why you're not going to release it in another case.
EDWARDSTherefore, there's a blanket we-don't-do-it category. That's why you will have to go to court.
NNAMDILaura, thank you for your call. Got to take a short break. When we come back, we'll hear responses from Dana Schrad and continue the conversation with Michael Pope, Dan Metcalfe and John Edwards. I'm Kojo Nnamdi.
NNAMDIWe're discussing police transparency in Virginia with John Edwards. He's a Virginia senator who's represented the commonwealth 21st District since 1996. He's a Democrat who also practices law in Roanoke and is a professor at the University of Virginia Law School. Daniel Metcalfe is executive director of the Collaboration on Government Secrecy at American University's Washington College of Law and was founding director of the Justice Department's Office of Information and Privacy.
NNAMDIDana Schrad is the executive director of the Virginia Association of Chiefs of Police. She's also an attorney and a former reporter. And Michael Pope is WAMU's Northern Virginia reporter. He writes for The Connection Newspapers. He's also author of the book "Hidden History of Alexandria, D.C." We got this email from John. "I understand the position of law enforcement, but who is in charge of policing the police?
NNAMDI"At the moment, I get a sense they're using the current law as a blanket excuse." Dana, if I file a request and it's denied, who does have access to this information, prosecutors, judges? And do the police, in fact, have absolute discretion?
SCHRADWell, we do have guidance in Virginia's FOIA law currently that gives law enforcement some determinations for making sure that they don't use absolute nondisclosure policies, that they, in fact, use a measuring stick, use a policy determination when...
NNAMDIBut then is there anyone or anybody who determines whether that measuring stick is being used appropriately?
SCHRADWell, absolutely. I mean, I think we as the general public are in that role, and that's why you have, as a recourse...
NNAMDIBut how can we have that role if we don't have access to the information?
SCHRADI'm not sure I actually understand your question that way. I mean, if...
NNAMDIWell, it goes to the emailer -- the email who says, "Who's policing the police?" How are we in the public to know that a police chief -- and I suspect that there is no police chief in Virginia who would want to do this but just -- let's say there's a police chief who says, look, my officers have been doing some wrong procedures here, and I don't want the public to find out about it, so I'll just use my discretion not to reveal the information.
SCHRADWell, you're absolutely right. We don't want that kind of thing going on, and I think that we want to make sure that our police agencies in Virginia are operating on the highest ethical standards.
NNAMDIWell, who guarantees that, or who is in charge of trying to make sure? Is that you?
SCHRADWell, one of the things that we -- that distinguish a police chief from a sheriff is that a police chief is an appointed official, not an elected official. A police chief reports to a county council, a city council, a county board and a local government manager. So those people who are also put into office, either by election or by appointment by our citizens, have a watchdog responsibility over their police departments.
SCHRADSheriff's offices are a little different in that those individuals are elected officials. And as a general public, we have the right and the responsibility to elect or not elect someone to serve as sheriff if we have any concerns about whether or not they're operating on the highest ethical standard.
NNAMDISen. Edwards, were your proposal to become law, would that therefore become the tool that can be used to assess whether police chiefs or police departments...
EDWARDSIt would certainly help. It would certainly help but, again, only once a case is over. And, of course, the chief of police can say, well, it's not really over yet. In which case, you'd file a FOIA request in court and have a judge decide whether it was really over or not. But, yes, right now they can, using just sheer discretion, unfair discretion, say I'm not releasing it ever, period, and you'll never find out what we did or what happened. Maybe there was misconduct, maybe there wasn't. But you'll never know, and this thing will always be covered up forever.
NNAMDIYour turn, Dan Metcalfe.
METCALFEWell, maybe I can shed some more precise light in the dynamics of the process by indicating how it works at the federal level. There are three mechanisms that are available in sequence when someone has made a request and the judge has been reached or the concern is reached that the agency has gone too far or not released enough information. And first is at the federal level, there is an administrative appeal right. There's a mechanism whereby the decision goes once again for a fresh review to a high level within the agency or maybe to a supervisory agency elsewhere in the government.
METCALFEThat's a very important mechanism because, back at the Justice Department, we had about 3,000 administrative appeals from FBI denials and the like each year. Fully 25 percent of them led to more information being disclosed. The second mechanism is found in government-wide coordination, policy guidance and even more of an enforcement role. And that's what my office did when we created it in 1981. We became sort of the bully on the block with the big stick, and we'd go to the other than 85, 90 federal agencies.
METCALFEAnd if we heard they were not doing it correctly, we would literally, you know, knock on their door and wave that stick and tell them, you know, if you're sued, we're not going to defend you in court because the attorney general has the authority to just tell you to fly right and that we're not going to ask a judge to uphold what you've done. And that has an enormous impact.
METCALFEAnd if there's not any office like that, any authority in the state attorney general's office or anywhere else in the state of Virginia, it seems to me that would be job one. You need to create that office. And perhaps Sen. Edwards would consider putting that mechanism directly into his bill.
EDWARDSYou see the problem here is it's pure discretion. There's nowhere to appeal. How can you appeal when the chief of police has absolute discretion, unfair discretion not to release it? There's no place to go.
METCALFEOK. But at least as a matter of policy under existing law -- and I've realized, Sen. Edwards, you're dealing first with existing law. If the agencies are expected by the governor and by the administration at the state level to be more forthcoming and to not make use of the full categorical strength of that law, that's something that a central policy office could go a long way to help about.
EDWARDSWell, one of the things that was considered is going to court and having a judge, have some kind of standard. The question then became, what standards are they? Because right now they're saying the chief of police can withhold criminal -- information of criminal investigation report just by his own discretion. There is no kind of review of that because it's pure discretion. There are no standards.
NNAMDIWe got an email from someone who says, "I'm a local newspaper reporter, and I occasionally need to talk with police press officers in other states. I can tell you that all of the out-of-state police departments I've contacted are more helpful, open and seemingly more honest about what's going on than our police officers and deputies in Virginia. Additionally, the police departments in many counties, cities and towns in Virginia seem to be downright hostile toward the press, and I believe they really hate having to give up any information at all."
NNAMDII read this only because, Dana Schrad, we have a reporter sitting in the room with us, and you used to be a reporter. Did you ever run into this issue as a journalist? And do you think there's any middle ground to be found?
SCHRADWell, certainly I did. And I understand what it's like to be on either side of, you know, an access to information from a government agency. I think that there's a couple of different watchdog opportunities in Virginia that are in place. First of all, we do have the Virginia Freedom of Information Advisory Council, and they do an outstanding job of answering questions and presenting advisory opinions that we use all the time to help fine tune our understanding of Virginia FOIA law and make sure that we're addressing it, our interpretation of it, appropriately.
SCHRADThey do training every year. And as the chiefs association, we do training, especially for our brand new chiefs, to make sure that they are getting proper guidance. And I can tell you, I feel questions all the time from chiefs and sheriffs. And when I do hear from reporters of an agency that has not been forthcoming, I appreciate the call because I make a call to that chief, and I talk to them about their policy to see if we can't open up their understanding of FOIA. But it is an ongoing process.
SCHRADWe have a lot of turnover in law enforcement. And when you think about it -- and Michael and I have talked about this before -- the very first job that a new reporter gets is usually on the police beat, and they're dealing with a rookie cop. And getting to know and understand the complexities, often, of our FOIA laws is something that does take time. So it's a constant process.
NNAMDIHere is Chuck in Washington, D.C. Chuck, you're on the air. Go ahead, please.
CHUCKYeah, thanks for taking the call. I love your show. I believe a bizarre case of the Peace Corps using privacy to defeat a FOIA request -- they filed a FOIA request for the surveys of the volunteers that the Peace Corps conducts about the performance of the staff. And we ask for it on a country-by-country basis. And then what you get from that is you can rank the staff. You can rank the countries, which is vital information for applicants because they don't want to get stuck into a country that is universally panned by the volunteers in that country.
CHUCKThe Peace Corps claims that the staff has a privacy interest in keeping the embarrassing survey results private, and so they are forced, as we have now gone to federal district court and we're suing them, to get these surveys because applicants need it. I mean, we get rankings of universities, movies, books, restaurants, but the Peace Corps doesn't want the volunteers to be able to rank the country, the 75-country program, to see whether or not they want to go or not. And all of this completely violates all of the transparency stuff from the Obama administration.
NNAMDIThat's the federal law that he's talking about there, Dan Metcalfe.
METCALFEYes. And I can suggest that this gentleman -- this caller should look forward to winning that case. However, I'm going to make a more forward-leaning suggestion that the case should not even be defended to begin with and that perhaps someone should politely contact the Justice Department attorney, the poor overworked AUSA, such as Sen. Edwards used to be, and say this is case that is a dead-bang loser for the government and that the Justice Department attorney should do what the attorney general says at his memorandum and not defend it.
NNAMDIChuck, thank you for your call, and good luck to you. I'm afraid that's all the time we'll have. Daniel Metcalfe is executive director of the Collaboration on Government Secrecy at American University's Washington College of Law. He was also the founding director of the Justice Department's Office of Information and Privacy. Dan Metcalfe, thank you for joining us.
METCALFEPleased to be here.
NNAMDIDana Schrad is the executive director of the Virginia Association of Chiefs of Police. She's also an attorney and a former reporter. Thank you for joining us.
SCHRADIt's been my pleasure.
NNAMDIJohn Edwards is a Virginia senator who's represented the commonwealth's 21st district since 1996. He's a Democrat. He practices law in Roanoke and is a professor at the University of Virginia Law School. Thank you for joining us.
EDWARDSThank you very much.
NNAMDIAnd Michael Pope is WAMU's Northern Virginia reporter and writes for the Connection Newspapers. He's also the author of the book "Hidden History of Alexandria, D.C." Michael, I see you every day. I'll be seeing you around. Thank you for joining us, though. And thank you all for listening. I'm Kojo Nnamdi.
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