FOIA Friday: Loudoun sex assault report and more police roster withholdings
One of the less noticed features of the Virginia Way is the long-running tendency of the commonwealth’s leaders to conduct their decision-making behind closed doors. While the Virginia Freedom of Information Act presumes all government business is by default public and requires officials to justify why exceptions should be made, too many Virginia leaders in practice take the opposite stance, acting as if records are by default private and the public must prove they should be handled otherwise.
In this feature, we aim to highlight the frequency with which officials around Virginia are resisting public access to records on issues large and small — and note instances when the release of information under FOIA gave the public insight into how government bodies are operating.
Judge unseals Loudoun schools’ sex assault report
Loudoun County Circuit Court Judge James E. Plowman late last week ordered that an independent review commissioned by the Loudoun School Board of how the district handled two sexual assaults by the same student in 2021 be unsealed.
The school board had resisted releasing the 35-page report by law firm Blankingship & Keith, which was dated December 31, 2021. Virginia Attorney General Jason Miyares’ office and former Loudoun Superintendent Scott Ziegler — who is being prosecuted by that office for charges related to the district’s handling of the assaults — called for its release this August.
The Loudoun Times-Mirror quoted Miyares as calling the decision to unseal the report “a victory for transparency, accountability, and parents everywhere.”
The report faults Loudoun Public Schools for not promptly conducting its own Title IX investigation of the first assault, which occurred at Stone Bridge High School on May 28, 2021. The division did not launch a Title IX investigation until Oct. 21, 2021, after the second assault occurred.
Instead, Blankingship & Keith found the division took an “overly restrictive view of Title IX” and “an overly deferential approach” to the Loudoun County Sheriff’s Office, which was conducting a criminal investigation into the incident.
“Regardless of whether LCPS was certain whether the alleged sexual harassment had occurred, it had notice of alleged misconduct that could meet the definition of sexual harassment,” it states. “At that point, LCPS had an obligation to respond promptly to the allegation in a manner that was not deliberately indifferent, notwithstanding the fact that the LCSO was investigating the incident.”
The report also found the Loudoun County Sheriff’s Office “refused to cooperate” with the school division’s delayed Title IX investigation into the first assault.
“It became clear that many LCPS administrators believe that they are not permitted to investigate certain school-related allegations that have been referred to the LCSO for investigation,” the report states. “This view seems to be grounded in experiences certain administrators have had with officers from the LCSO, some of whom allegedly have threatened LCPS administrators with criminal charges for interfering with LCSO investigations.”
According to Loudoun Now, Loudoun School Board Chair Ian Serotkin said he was glad the information in the report was released but reiterated the board’s position that it should have been withheld under attorney-client privilege.
Read the unsealed report here.
More police departments withholding officer names, citing undercover concerns
Hanover County is withholding the names of all 232 of its law enforcement officers whose rank is below captain, saying disclosure “could potentially compromise” department operations because “there is a potential for those employees to work undercover.” Henrico County is withholding 118 law enforcement names that it says “would jeopardize the safety and security of select personnel deployments and undercover operations.”
The names were requested by Alice Minium, a police transparency activist who has collected police rosters from over 200 Virginia law enforcement agencies through the group OpenOversightVA. Minium said most agencies have provided their rosters without issue, but several local governments in central Virginia have withheld numerous names.
This July, a Chesterfield judge ruled the county could withhold the names of 521 officers at or below the rank of lieutenant, saying that because it moves officers in and out of undercover positions, releasing the names “would put the safety of undercover officers and the integrity of undercover investigations at risk.” Minium is appealing the ruling.
Virginia’s Freedom of Information Act says that no provision of the law “shall be construed as denying public access to … records of the name, position, job classification, official salary, or rate of pay of, and records of the allowances or reimbursements for expenses paid to, any officer, official, or employee of a public body.”
A separate provision of the law allows but does not require government officials to withhold “portions of any records containing information related to undercover operations or protective details that would reveal the staffing, logistics, or tactical plans of such undercover operations or protective details.”
In 2016, the Virginia Senate passed a bill that would have defined the “names and training records” or law enforcement officers and fire marshals as “personnel records” that could have been withheld from the public under FOIA. The bill later died in the House.
Proposed federal legislation would require disclosure of police misconduct settlements
U.S. Sen. Tim Kaine and Rep. Don Beyer, D-Alexandria, introduced a bill known as the Cost of Police Misconduct Act that would require federal, state and local law enforcement agencies that receive certain federal policing grants to annually report judgments or settlements related to misconduct by law enforcement officers. That would include details about the alleged misconduct, any personnel action taken by the officer or agency, the total amount paid and the source of the money used.
State and local governments would also be required to publish their reported data, and the U.S. attorney general would be required to maintain an online, public, searchable database.
“Many of us understand the significant harm caused by police misconduct and its devastating cost to human life, but most Americans are unaware that cities and counties also bear a staggering financial toll because law enforcement agencies often settle misconduct claims in secret,” said Beyer in a statement. “Full data transparency is urgently needed.”
Have you experienced local or state officials denying or delaying your FOIA request? Tell us about it: [email protected]