Police misconduct files held off limits to civil litigant; release would violate officer’s privacy

From the Summer 2001 issue of The News Media & The Law, page 41.

West Virginia’s highest court has determined that records of investigations into police misconduct are not public because releasing them would cause an unreasonable invasion of an officer’s personal privacy, according to a decision handed down May 15.

Laura Manns requested the records of every internal police investigation of officers in the Charleston, W. Va., police department following her arrest in 1996 for battery on a police officer and resisting arrest, charges stemming from her refusal to pay a bus fare. The 76-year-old grandmother claimed arresting officer Cathy Smith used excessive force.

Manns hired counsel to represent her in court on the pending criminal charges and in a federal civil rights lawsuit against the police department. As part of Manns’ investigation prior to appearing in court, she made a state open records request for records of internal police investigations of any Charleston police officer and, specifically, records of investigations involving Smith.

The City of Charleston complied with some of Manns’ requests but declined to release information on internal police investigations, claiming that information was exempted from state open records law because its release would be an unwarranted invasion of the officers’ personal privacy.

Before the high court, Charleston noted that Manns’ request was for all of the police investigation files, including “the good, the bad and the unproven, malicious or not.” Because the documents contain some unfounded allegations, release would invade the officers’ personal privacy, the city argued.

Manns argued however that “public policy concerns regarding accountability of public officials who are empowered with the ability to take liberty, and sometimes life, demand full disclosure of requested information,” according to briefs filed with the court

The West Virginia Supreme Court of Appeals agreed with the city, applying a five-part test from an earlier decision to determine if releasing a document would invade an officer’s privacy.

The court considered the extent of the invasion, the value of the public interest, whether the information was available from another source, whether the source of the information expected confidentiality and if there is some way to limit the extent of the invasion of privacy.

The court acknowledged that “the lawfulness of police operations is a matter of great concern to the state’s citizenry,” but was concerned that “compelled disclosure of police investigatory material might result in ‘fishing expeditions’ and thereby encourage frivolous litigation.” On balance, privacy concerns outweighed any public interest in the records, it said, finding the records exempt.

Manns requested a rehearing because, she claimed, the court’s analysis was incomplete and the determination that all citizen complaints are closed contravenes the court’s previous case law. The motion pointed out that the court failed to consider that the investigation records Manns requested were only available from the police department, and that documents could be released with officer names redacted, which would alleviate their privacy concerns.

Manns argued that the court was turning its back on the tenets it laid out in prior cases in which the court had “consistently taken steps such as deletion of certain personal data from the documents to be released so as to protect the privacy interests of individuals involved” in order to avoid an “‘all or nothing’ decision under the Freedom of Information Act where personal material is concerned.” The court denied the motion for rehearing.

The case was appealed to the high court by the city after a lower court had ruled in favor of Manns in February 2000. The lower court determined that releasing the records was not an unwarranted invasion of personal privacy. That court noted that “all public officials and employees are servants and employees of the people. It would be a strange degradation of this relationship to suggest that the employer is not entitled to know how his employees are performing in their jobs.” — CC