Transparency is better on the Peninsula, but glitches remain

and Contact Reportersdress@dailypress.com

It's not quite as tough to get public records on the Peninsula as it is elsewhere in the state, but it still isn't as easy as Virginia's Freedom of Information Act suggests it should be.

"By enacting this chapter," the law reads, "the General Assembly ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies. ..."

As part of a statewide effort by 13 newspapers to test what happens when Virginians seek information from local government, Daily Press reporters asked local officials and police for records the Freedom of Information Act says they must produce — criminal incident reports, officials' salaries and officials' financial disclosure forms, the keystone of Virginia's political ethics law.

The hardest to get were criminal incident reports on felonies. The Poquoson and Newport News police departments said the records were confidential, but released them eventually after reporters insisted. Hampton sent a printout of its online incident log, which did not include some information state law says should be provided.

Only one Peninsula county government and one school system balked when asked for records of county administrators' and high school principals' salary and allowances.

That was in line with what happened across the state when asking about the top local government official's pay. Statewide, about one in three school systems would not let the requesters look at records of high school principals' salaries and allowances.

Newspapers asked free-lance writers and staff members who did not cover the localities to go to police and sheriff's headquarters and to local government and school division offices to ask for the information.

When one Daily Press requester asked at the Poquoson police front desk to see the city's criminal incident reports since early previous evening, the clerk said incident information is confidential unless you're named in the report. The Code of Virginia actually says such records "are required to be released" and does not limit who may see them.

When pressed, the desk clerk checked with the person in charge of the department's records management, who also said the records were confidential. Asked where incidents occurred, when they occurred and which officers were the point of contact for questions — all specifically required by law to be disclosed — she said that information, too, was confidential.

In response to a written request for the records, Poquoson Police Chief Clifford Bowen responded in writing that the records were exempt from release. His letter noted that criminal incident information — including the general description of the activity, the date, general location and responding officer — was required to be released for felonies. This was the information the requester had asked for.

"As a courtesy, I would be more than happy to provide the criminal incident information for all criminal offenses which occurred," during the time period in question, but there were no reported incidents, Bowen wrote.

Opportunity for education

Later, Bowen said in a phone interview that the issue during that initial in-person request was with the terminology used — the clerk took a reference to "criminal incident reports" to mean the investigative reports from officers, which are exempt from release under the state code.

"It's semantics," Bowen said. "The code uses those words and there's a distinction."

He conceded that the average citizen may not recognize that distinction and said the request provided an opportunity to educate his office staff.

"I sat down with (the clerk) and explained about the information you were looking for," Bowen said.

In Newport News, the police department front desk clerk told a requester the reports were not public information. The clerk asked several times why the information was being sought.

The police records division supervisor said in a subsequent letter the cost to produce the record would be $54. The letter cited a section of the code that did not apply as grounds for saying the record did not have to be released.

While police eventually did say they would release the information, City Manager Jim Bourey said the initial response was not handled the way he would have liked.

"I believe you shouldn't just provide the information you need to, you should provide all the information you can," Bourey said.

But it can be a challenge ensuring that all the city's employees know how to respond to requests from the public for records and where to direct residents to the handful of officials who are legally custodians of the records, he said.

In Hampton, the desk clerk at the police department referred the requester to the records department, which sent the requester back to the front desk. After checking with a superior, the front desk clerk referred the requester again back to the records department and said a written request was required. FOIA does not require written requests.

At the records desk, a clerk who would not identify herself asked if the requester was with media and said she needed to know because that was police policy. FOIA does not require that. It says all residents of Virginia must be granted access. There are no special privileges or restrictions for the press.

Only when the requester said he was with the Daily Press did the clerk act on the request, going to a back office to consult for several minutes with a public information officer, He told the requester to make a written request to the city attorney, who would provide a printout of incident information the department posts online.

The city attorney's office sent a two-page printout five days later.

There were 24 incidents, including a suicide and a maiming. There was no description of injuries for the maiming, although FOIA requires such descriptions.

FOIA also requires a general description of property losses or damage, but the only details in the eight theft reports were that two were of a motor vehicle and one was a robbery involving brandishing a gun. There was no general description of damage for the four property destruction incidents.

The Hampton record had no information about investigating officers or "other point of contact," which FOIA also requires be provided.

At the Isle of Wight County Sheriff's Office, the clerk at the front desk said it could take seven to 10 days to provide the information, and asked what organization the requester was with. Asked if that mattered, she brought out an officer who provided the records without asking questions.

Questions posed to school divisions

To test how well school officials follow FOIA, the Daily Press and other newspapers went to school division offices and asked for high school principals' salaries and allowances. FOIA requires disclosure of salaries and allowances of public officials who make more than $10,000 a year.

School officials across the state often balked when asked about high school principals' salaries and allowances. Although Peninsula localities did better, the request still bothered a couple.

In Isle of Wight County, clerks said they weren't sure if they could give out the principals' salaries because it was personal information. They asked for a written request, which the requester provided.

The next day the school system public affairs officer emailed the records to the Daily Press, although the requester did not identify herself as a Daily Press reporter.

At Williamsburg-James City County schools, the requester was asked several times where she worked.

Newport News and Hampton each provided the information without question but in both cases officials recognized the requesters as Daily Press reporters.

In York County, a clerk at county administration offices said she wasn't sure why a requester was asking for the administrator's salary, since the information was in the newspaper. The clerk would not provide the information, but referred the requester to the county's public relations office.

In Isle of Wight County, the requester had to ask four people about the county administrator's pay and allowances, before she was referred to county public information officer Don Robertson, who provided the information without asking questions.

Requesters had an easier time getting information about county administrator and city manager salaries at local government offices.

In Hampton, finance department office manager Shannon Huff said the requester needed to file a written request with city attorney.

That's standard procedure in Hampton, said spokeswoman Robin McCormick. It's best to have a single point of a contact for FOIA requests, and the city attorney's staff are the best people to advise officials who are custodians of records about how to follow the law.

"That's their job," she said.

Who is the custodian?

FOIA does not define what a custodian is, but does say custodians are responsible for making records available for inspection and copying during office hours.

So, at the Hampton city clerk's office, a request for financial disclosure forms for the mayor and city manager also went to the city attorney. The city attorney's office released the mayor's, and at first said there was no such form for the city manager. The city attorney's office eventually provided the document when the requester pointed out where state ethics law requires the filing.

Several other governments and schools also direct requests for records to a single office, usually the public relations director.

Hampton's policy is to make as much information available as possible, McCormick said.

The city posts some information online, including the financial disclosure forms of Mayor George Wallace and City Council members.

McCormick said city officials will print out such reports when people who don't have access to the Internet come in and ask. In addition, she said, city libraries have computers and staff who will help residents find information about city government.

"We want people to have the information," she said.

Easy access to public information ought to be the rule in local government, Newport News' Bourey said.

But there are exceptions.

"Personnel, litigation and economic development — those are the big ones," he said.

"You've got to look at the public interest," he said. "If a company that could bring 1,000 jobs says it won't talk to you unless its plans are confidential, what's the public interest then?"

Bourey breaks with many officials on disclosing the terms of lawsuit settlements. He thinks they should be disclosed. Hampton last month refused to release details of its settlement of a lawsuit over the sexual assault of a special-needs student at Kecoughtan High School in 2013.

One particularly difficult area, Bourey said, is what FOIA calls working papers — documents that top officials like the governor and city managers use to help make decisions.

Last year, Bourey initially rejected a Daily Press request for a list of projects city department heads and the school system wanted to be included in the city's five-year capital improvement plan, saying they were his working papers. He released the records after the newspaper sent FOIA requests to the department heads themselves.

This year, the Daily Press again asked for the list of requests, which Bourey shared.

Ress can be reached by phone at 757-247-4535.

Daily Press staff writers Reema Amin, Theresa Clift, Jane Hammond, Frances Hubbard, Ryan Murphy and Jennifer Williams contributed to this report, as did Virginia Gazette reporter Heather Bridges.

Copyright © 2017, The Virginia Gazette
48°