Court lets stand closure of public employee misconduct records

VIRGINIA–In mid-June, a divided Virginia Supreme Court refused to reverse a trial court decision exempting from disclosure records of a police investigation into alleged misconduct by a public employee.

Although it did not express approval for the trial court’s holding, the high court in Richmond affirmed the decision, holding 4-3 that it could not address the merits of the appeal because the appellate record was insufficient. The lower court had not issued a written opinion.

The high court refused to consider whether the trial court erred when it ruled that documents relating to the police investigation were exempt from disclosure because they were personnel records. The court did note that “under certain circumstances, investigative materials dealing with employee misconduct may be a ‘standard’ part of employee personnel records” and therefore exempt from disclosure. Further, the court noted that no effort was made to produce the contested records for its examination, despite its encouraging the practice.

In May 1997, WVEC Television reporter Bruce Moore requested records relating to possible misconduct by employees of the Newport News Codes and Compliance Department, as well as materials generated by the surveillance of a former plumbing inspector. Moore’s request was denied by the city manager on the grounds that the information constituted “personnel and medical records” of city employees and was therefore exempt from disclosure under Virginia’s Freedom of Information Act.

Following the denial, Moore appealed to a Newport News trial court where his appeal was dismissed without comment.

In her four-page dissent, Supreme Court Justice Elizabeth Lacy stated that the record was sufficient to allow review and disagreed with the city’s contention that because employee misconduct is a personnel matter, the records were exempt from disclosure. Lacy’s dissent was joined by two justices.

(Moore v. Maroney; Media Counsel: Conrad Shumadine, Norfolk)