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Public defender denied access to client’s criminal incident reports

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  1. Freedom of Information

    NMU         VIRGINIA         Freedom of Information         Jun 8, 2000    

Public defender denied access to client’s criminal incident reports

  • A prosecutor satisfied Virginia’s Freedom of Information Act when he gave a public defender a summary of original documents related to an alleged carjacking, a trial court held in May.

A Fairfax County judge held May 23 that original documents related to an alleged carjacking were not subject to Virginia’s Freedom of Information Act because providing criminal incident information, unlike other public records, requires handing over only a general description.

Fairfax assistant public defender James Connell sought court-ordered delivery of police reports and statements from victims and witnesses, now in the hands of Commonwealth’s Attorney James Kersey.

Connell represents Ahmed Shireh, who in March was arrested and charged with carjacking. At Shireh’s preliminary hearing in April, Connell saw Kersey holding a police report about the incident and asked the prosecutor for all criminal incident documents relating to the charges against his client.

Eleven days later, having received no reports from Kersey, Connell asked again for the information. Kersey responded May 8 by sending a summary of the information but not the documents. That prompted Connell to ask for the court order.

The court said that Kersey did not have to provide any more information. “By its very definition, [criminal] incident information is a ‘general description'” and the summary of the reports provided such a description, the court said.

Connell sought fines and civil penalties against the prosecutor because Kersey took more than five business days to deliver information, the deadline under the FOI Act for public bodies to provide public records.

The court said that because the commonwealth’s attorney is not a public body, he is not subject to the deadline.

The court said Kersey nonetheless had acted “within a reasonable time” and made “a good faith effort” to comply with the FOI Act.

(Connell v. Kersey; Media Counsel: Michael Devine, Fairfax) DB


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