Secret police? Virginia considers bill to withhold all officers' names

Tom JackmanThe Washington Post

It started with a reporter's attempt to learn whether problem police officers were moving from department to department. It resulted in legislation that is again bringing national scrutiny to the Virginia General Assembly: a bill that could keep all Virginia police officers' names secret.

In a climate where the actions of police nationwide are being watched as never before, supporters say the bill is needed to keep officers safe from people who may harass or harm them. But the effort has drawn the attention of civil rights groups and others who say police should be moving toward more transparency - not less - to ensure that troubled officers are found and removed.

If it is made law, experts say the restriction would be unprecedented nationwide.

The Virginia Senate has already approved Senate Bill 552, which would classify the names of all police officers and fire marshals as "personnel records," exempting them from mandatory disclosure under the state's freedom of information law. The Republican-dominated Virginia House will consider the bill in hearings starting Thursday. Gov. Terry McAuliffe (D) has not taken a position on the bill yet, his spokesman said.

State Sen. John A. Cosgrove Jr., R-Chesapeake, - citing that he knew many police officers and their families - said: "The culture is not one of respect for law enforcement anymore. It's really, 'How, how can we get these guys? What can we do?' . . . Police officers are much more in jeopardy. There's no nefarious intent behind the bill."

Pushback has been strong. "To say every officer's name ought to be confidential," said Claire Gastañaga, executive director of the American Civil Liberties Union of Virginia, "is just a step too far in government secrecy. We are dangerously close to a police state in some respects." She said shootings and attacks on police are rarely committed by anyone using public records.

Although other states have made moves to shield the identities of some officers, none would go as far as the proposal in Virginia.

In Oregon, the state House passed a bill last week allowing the name of an officer involved in a police shooting to be withheld for 90 days if a judge finds there is a credible threat to the officer. This followed the killing of a protester from the Malheur National Wildlife Refuge, held by armed occupiers for more than a month this year. And the Pennsylvania House passed a bill in November mandating the withholding the name of an officer involved in a shooting while the investigation is pending - which would be a change from the Philadelphia Police Department's policy of releasing the name within three days.

Kevin Carroll, president of the Virginia Fraternal Order of Police union, said he knew of one instance when a citizen had taken an officer's name and committed financial fraud, adding that the potential existed in other cases for danger to an officer's family. "This is not about trying to keep information from the public, to have secret police," Carroll said."But it is about wanting to keep our officers safe."

Carroll said: "With the current trend across the country, law enforcement officers have been attacked and even assassinated because of issues being driven in the media. . . . With technology now, if you have a name, you could find out where they live. It puts them at risk."

Completely withholding officers' names from the public is a new step nationally, according to Dan Bevarly, interim executive director of the National Freedom of Information Council. "Usually legislation is related to a specific incident, but not as a preventive measure," he said. "To do such a blanket exemption for a high-profile government employee, what are you trying to accomplish?"

John Worrall, a criminology professor at the University of Texas at Dallas specializing in policing in legal issues, said that in his review of state freedom of information laws, "none that I've found have gone to this extreme. In fact, the opposite is occurring" in many states, Worrall said, with more governments and police agencies posting information promptly about police-involved shootings.

Although police supporters fear the use of publicly available records against them, "that's largely based on a total lack of data," Worrall said. "There's no data on retaliatory actions against police officers. And even if the problem exists, I'm not convinced that hiding their names is the solution."

Worrall and others noted that keeping officers' names secret seems to conflict with the idea of community policing and building trust with citizens. "I don't know how you have community policing," Gastañaga said, "when nobody knows your name."

Should the Virginia bill become law, the practical implications still aren't clear. Some worry it would allow an officer who pulls over a driver, or stops someone in the street, to refuse to provide his or her name. Officers' names would still appear on traffic tickets or court documents.

Police would still have the discretion to release any officer's name if they wanted, and police officials said they would not withhold names without specific reasons. Fairfax County Police Chief Edwin C. Roessler Jr. said he and the Fairfax County Board of Supervisors remains "committed to increasing our transparency." He said that officers would never be removing their names from their uniforms, as some have suggested the bill would allow, and that he would withhold a name only to protect a particular officer's safety or the sanctity of an ongoing investigation. Fairfax police waited 16 months to release the name of the officer who shot an unarmed Springfield man, John Geer, in 2013. The release came only after a judge ordered it.

Dana Schrad, executive director of the Virginia Association of Chiefs of Police, said police in the commonwealth already have the option to withhold names, and Cosgrove's bill merely codifies that discretion. She and Carroll, the police union president, both noted that 1,500 Virginia state employees had fraudulent tax returns filed last year, which officials think originated with an online database of employee names and salaries.

"We do not expect this to be abused," said Schrad, who sent an email to state police chiefs saying: "We caution all of our agencies to use discretion in exercising this exemption. In order to build a trust relationship with communities, agencies should make sure that the communities know who their officers are. This exemption should only be exercised when trying to protect the identity of an undercover officer or when protecting the integrity" of an internal affiars investigation.

Schrad and Carroll helped launch the bill after the Virginian-Pilot newspaper and the state Department of Criminal Justice Services reached an agreement last summer for the state to release the names, agencies and dates of employment of every law enforcement officer in Virginia. Schrad opposed the release because she said the database was old and inaccurate, saying that providing the mass data was her chief reason for pursuing the bill.

Virginian-Pilot reporter Gary Harki said he wanted to check tips he had received that officers who were fired from one department were simply rejoining a police force elsewhere, similar to the reporting done by the Boston Globe on reassignment of pedophilic Catholic priests in Massachusetts. The newspaper negotiated an agreement with the state to obtain the names of only current officers, not to publish the entire database or share it with anyone, and to indemnify the state from any legal claims.

After the agreement was signed, Schrad and Carroll objected, and the state changed its mind. No deal. But the state failed to cite a legal exemption for its refusal in the required time under the state Freedom of Information Act, and a Norfolk judge ruled that the data had to be given to Harki. The judge also ruled that police names are personnel records that can be exempt under FOIA, but he said the state had already agreed to release them. The ruling at the circuit-court level does not have the weight of legal precedent and so Schrad and Carroll sought to put it into law.

"The public has a right to know who their police officers are," Harki said. "To me, it's just a fundamental principle of democracy [to know] who our public officials are." He said that the database he got was "just a piece of a larger puzzle to a problem that may or may not exist" and that he hasn't published anything about it since the Virginian-Pilot won the court ruling in November.

When Harki worked as a reporter in West Virginia, a similar investigation of troubled officers moving between departments resulted in legislation adding oversight to the movement of officers.

Megan Rhyne of the Virginia Coalition for Open Government noted that many public servants take actions that could anger citizens - prosecutors, social service workers, judges - but their names remain public. She also said that withholding names would result in a lack of accountability for a variety of unsavory acts, such as profligate spending or hiring friends and family, actions that often are caught only when names are linked to illegal deeds.

The bill is scheduled for a hearing Thursday afternoon before a subcommittee of the House General Laws Committee, chaired by Del. James M. LeMunyon, R-Fairfax. He declined to offer his views on the bill, but he said if it passed, it would be heard again next Thursday before the entire committee, then possibly sent to the full House.