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.
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