By Gary A. Harki and Patrick Wilson
The Virginian-Pilot
NORFOLK, Va. — A bill that would allow all Virginia law enforcement officers’ names to be withheld from the public would be the first of its kind in the country, police accountability and open records advocates say.
The proposal by Sen. John Cosgrove, R-Chesapeake – SB552 – excludes the names of law enforcement and fire marshals from mandatory disclosure under the Virginia Freedom of Information Act and makes them a personnel record.
Cosgrove said he worked on the bill with the Fraternal Order of Police and the Virginia Association of Chiefs of Police. He acknowledged that officers’ names could be secret “under the broadest scope of that bill.”
It passed the Senate 25-15 this week and will soon be taken up by a House of Delegates subcommittee.
The bill is part of a growing movement inside the law enforcement community to shield officers from scrutiny after a rash of controversial police shootings around the country prompted protests and increased focus on officers, said Samuel Walker, professor emeritus of the School of Criminology and Criminal Justice at the University of Nebraska Omaha and a longtime law enforcement scholar.
“This is part of the broader culture of shielding officers from being held accountable for their actions,” Walker said. “And this is in the absence of any specific credible evidence that officers are targeted for that request. There’s no basis for that position.”
A bill before New Jersey lawmakers would allow officials to withhold the names of state police detectives. West Virginia lawmakers are considering a measure that shields officers’ and their families’ contact information from the public. And several states have or are examining laws aimed at preventing the release of the names of officers involved in shootings.
Norfolk Sheriff Bob McCabe said he thinks some officers’ names – such as those working undercover – should be shielded from FOIA, but he does not agree with a broad exemption that hides all police names.
He, too, said the bill was a reaction to events such as the fatal shooting of unarmed teenager Michael Brown in Ferguson, Mo., in 2014. After that, the involved officer’s life was threatened, McCabe said.
Police are more concerned than ever that someone will single them out to do them or their families harm, he said.
“I understand the intent of the bill, but I also understand the need for transparency,” he said. “I haven’t read the whole thing, but if it says that no names will ever be accessible, that is a bit broad.”
Cosgrove has given two rationales since submitting his bill Jan. 13.
“The reason I brought this forward: There was a court ruling in Norfolk. The Virginian-Pilot had requested this type of information – salary and position – and the court ruled that that was actually open to access,” Cosgrove said in a Feb. 2 subcommittee hearing.
He said he was concerned about the safety of undercover officers and said “a brand-new rookie officer may one day be one of those detectives or undercover officers.”
“I think this FOIA exemption is probably needed just because we want to make sure their safety is assured (and) their families are not put at risk just because their information as law enforcement officers is available.”
The Virginian-Pilot requested the names and employment history of all law enforcement officers in the state from the Department of Criminal Justice Services to track officer movement from department to department. The newspaper is examining how often officers who got in trouble were able to find other jobs in law enforcement.
Megan Rhyne, executive director of the Virginia Coalition for Open Government, questioned how Cosgrove’s theory would apply because undercover officers never use their real names while working in that capacity.
Later, Cosgrove began citing officer safety generally, saying public disclosure of the names of any officers could endanger them.
“My point is – and I used the San Antonio tabloid as the reason for doing this – if all of a sudden anybody goes and takes that information under FOIA, basically they can then publish it any way they want to. In San Antonio, they were going to publish the names and home addresses of all the San Antonio police force. I made the point very clear, that puts not only the law enforcement officer but most importantly their family in jeopardy.”
The editor in chief of the San Antonio Observer, a free weekly, said Feb. 7 that the paper would look into publishing the names and addresses of all city police officers following an officer-involved shooting. The paper has since backed off the idea.
Cosgrove said he knew of no examples when asked for a time someone used public information to track down or commit violence against an officer.
“I don’t have a particular instance of that,” he said. “I’m sure that ones can be found. All you have to do is talk to any police department. They probably have a good illustration of that happening.”
None of about a dozen people – law enforcement officers, legislators, academics, open-government advocates – interviewed for this story could point to a case in which a police officer had been harmed because his name was found on a payroll sheet or other list of names.
Democratic Sen. John Miller of Newport News, a former journalist whose son was a state trooper and is now at the FBI, voted against Cosgrove’s bill.
“I thought the bill was way too broad. The categories of people he wanted to exempt, like fire marshals, didn’t need to be included,” he said. “The public’s paying their salaries, and they have a right to know that they’re employed.”
Other legislators thought Cosgrove made a compelling case.
“Having these records wide open, I think they’re especially vulnerable, you know, for reactions from the public and that type of thing. They’re out there doing a job, and I think it’s altogether appropriate that we afford them that type of protection,” said Sen. Frank Wagner, R-Virginia Beach. “They’re out there, and they have a lot of enemies out there on the streets.”
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The full scope of Cosgrove’s bill is unclear, such as whether officers’ names could be redacted from crime reports.
Wayne Huggins, executive director of the Virginia State Police Association, a police union that lobbies the General Assembly, said he supports having police officers’ identities completely secret.
“What we’re trying to do is to move the ball to the greatest extent possible so as to provide protection and security for our folks,” said Huggins, a former state police superintendent.
State police spokeswoman Corinne Geller declined to comment when asked why her agency publicizes names of troopers on its website. She said the Virginia State Police does not talk publicly about pending legislation.
If police names become secret, there is no way for the public to hold officers accountable, said Craig Futterman, a law professor at the University of Chicago who specializes in civil rights lawsuits and focuses on police brutality and racial discrimination.
“It is contrary to any notion of democracy or open governance,” he said. “There are plenty of exemptions in every state to freedom of information acts that protect the safety and security of public employees. This is overly broad, sweeping and utterly unnecessary.”
He called it contrary to a fundamental principal of policing: that the police are the public and the public are the police.
“Just in terms of community-police relationships and trust, how do police build relationships in their community if their names are secret?” he asked. “Police are special in a lot of ways. No other members of our government do we give the power to take away our freedom, the power to use force, the power to shoot and kill. … Too much is at stake to let the police operate in secrecy.”
Virginia’s FOIA already has about 175 exemptions, and nearly all police reports are exempt from mandatory disclosure. The Center for Public Integrity, in a state report card, gives Virginia an “F” and ranks it 38th on access to public information.
Sen. Scott Surovell, a Democratic lawyer from Fairfax County, voted against Cosgrove’s bill. His impression was that the national trend was “exactly the opposite.”
“We want to see more transparency in law enforcement operations, not less. That’s why you’re seeing more and more jurisdictions in Virginia and outside Virginia adopting body cameras and dashboard cameras,” he said.
“It’s frightening to me that Virginia would be the first state in the United States to take this step.”
Copyright 2016 The Virginian-Pilot