CHARLESTON - The state Supreme Court has ruled that openness is the default position regarding the public’s access to disciplinary actions against state troopers.
The court on Nov. 26 reversed a Kanawha County judge’s decision last year denying a Charleston Gazette reporter’s request for various documents on how the State Police conducts internal investigations made against troopers.
In a 45-page opinion written by Justice Margaret A. Workman, the court ruled that in light of its previous decisions making disciplinary records of other professionals open to the public, the State Police failed to make a convincing argument why its should remain a secret.
According to court records, Gazette reporter Gary Harki in May 2010 submitted a Freedom of Information Act request to then-State Police Superintendent Timothy Pack for records on not only the complaint process, but also the particulars of complaints lodged against troopers, including “a copy of the central log of complaints maintained by the…Professional Standards Section” and all Internal Review Board reports from the previous five years “with the names of the employees identified in the Early Identification System redacted.”
Though Pack provided Harki with the former - including information made available to complainants on the process, a blank complaint form and the members of the IRB - he denied the latter citing, among other things, the personnel exemptions in the FOIA law.
After the Gazette filed suit in November 2010 to compel release of the information that was denied, Judge Jennifer Bailey on May 16, 2012, sided with Pack and the State Police. In her ruling, Bailey said because of the wording of the legislative rules written in response the court’s prior opinion in a 1993 case directing how the State Police was to deal with allegations of employee misconduct, honoring the Gazette’s FOIA request would create a potential invasion of privacy for a trooper being investigated.
However, Workman said the legislative rules, the FOIA law, and the court’s subsequent interpretations of them are not in conflict. She pointed to two 1986 cases brought by the Gazette that successfully opened lawyer and doctor disciplinary files while still maintaining a level of confidentiality during the investigative process.
“We recognize the processes and procedures in lawyer and physician disciplinary actions differ in some respects from those at issue in this case,” Workman said.
“Nonetheless, based on the foregoing analysis, we conclude that the premature disclosure of information about and investigation into allegations of misconduct by state police officers before any internal investigation or inquiry takes place, could cause an unwarranted invasion of privacy.”
“Conversely,” Workman added, “we conclude that after an investigation has taken place and determination made by the Superintendent or Internal Review Board as set forth in the legislative rule, there is a compelling reason to disclose records developed and maintained by the State Police, a public agency, regarding the investigation.”
Using the lawyer and physician disciplinary processes in West Virginia as a model, Workman said upon determination that disciplinary action is appropriate against a state trooper, the public shall have the “right to access the complaint, all documents in the case file, and the disposition with the names of the complainants or any other identifying information redacted.”
In reversing Bailey’s decision, the court remanded the case back to her to conduct an in camera review of the documents the Gazette requested do determine what documents are to be released consistent with its opinion.
According to a footnote in the opinion, when the case was argued before the court in October, there were 1,276 allegations against State Police employees in the central log.
The Gazette was represented by Rudolph DiTrapano, Sean P. McGinley and Robert M. Bastress with the Charleston law firm of DiTrapano, Barrett and DiPiero. The State Police was defended by Assistant Attorneys General John A. Hoyer and Virginia Grottendieck-Lanham.
West Virginia Supreme Court of Appeals case number 12-0811