Ever feel like throwing in the towel? Just flinging that ragged cloth into the air, with a gargantuan sigh and a few expletives (OK, more than a few) and walking away?
That was my reaction — minus the actual towel, but very much with the expletives — when I read the opinion issued Dec. 20 by a Hanover County Circuit Court judge in the case of Minium v. Hines. In that opinion, the judge said Alice Minium and her organization OpenOversightVA could not have the names of scores of officers in the Hanover sheriff’s department in relation to their salaries because someone (gee, I wonder who) might link a name with a photo, thereby jeopardizing the sheriff’s ability to move some of his officers into undercover operations some day in the future.
Let’s back up a bit: Minium collects information about police officers around the state. One of the ways she gets information is through filing FOIA requests. Then, she posts the officers’ names with basic information about whether they are still on the force and whether there are any complaints against them. If she has a photo, she’ll use it, but most entries do not have a photo, and very few have complaints noted. There is no editorial comment about anyone.
Minium also asks for the salaries of the officers under FOIA and posts the data she receives. Last year, she started getting weird responses from a few police departments, responses that elevated secrecy over accountability. She pushed back on a few and eventually received the data, but Chesterfield County staunchly refused. She went to court and she lost. A judge there said they didn’t have to give her the salary data because it might compromise undercover operations.
Hanover got wind of the win and made the same argument.
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Anyway, from a statutory interpretation standpoint, let’s take note that FOIA specifically says in § 2.2-3705.1(1),
“No provision of this chapter or any provision of Chapter 38 (§ 2.2-3800 et seq.) shall be construed as denying public access to … (ii) records of the name, position, job classification, official salary, or rate of pay of, and records of the allowances or reimbursements for expenses paid to, any officer, official, or employee of a public body[.]”
To repeat:
No provisions of this chapter (meaning Chapter 37, which is how FOIA is codified within Title 2.2)
Shall be construed
To deny access to
Name, position, job classification, official salary, or rate of pay.
These police departments know that they are supposed to turn over this salary data and that names aren’t secret. There was a bill introduced in 2016that would have made the names of officers a personnel record that was specifically exempt from § 2.2-3705.1(1). That bill passed the Senate but died in a House subcommittee. There would be no need for that bill if there was actual support for the theory that sometimes they can be withheld.
Nonetheless, Chesterfield and Hanover pounced. See, they just forgot for the past eight years that there’s this slam-dunk provision over here in § 2.2-3706(B)(8) that says they have the discretion to withhold, meaning, they’re not required to, but they can,
“[t]hose portions of any records containing information related to undercover operations or protective details that would reveal the staffing, logistics, or tactical plans of such undercover operations or protective details. Nothing in this subdivision shall operate to allow the withholding of information concerning the overall costs or expenses associated with undercover operations or protective details.”
See, they said, if we allow the name of an officer to be revealed in a spreadsheet — as opposed to in-person, on an incident report, in a press release, at a coffee-with-a-cop function, a commendation ceremony, etc. — then it’s going to reveal the staffing details of undercover operations.
If it were a straight line between disclosure in a data set to the compromise of undercover operations, that could be one thing, but that’s not what’s going on here. The judge laid out for us all the steps that have to happen along the way for this to happen.
“[T]here is a difference between an individual wearing a name tag and providing a list that contains all the names of all the deputies of the Sheriff’s Department. Once a name is released as a member of the department there is nothing that prevents someone from conducting further research, finding a picture, and publishing on social media the name and photos of all officers for the department. Were that to happen, it would clearly affect the Sheriff's ability to staff undercover operations."
(Is it just me, or did other lawyers start thinking about Helen Palsgrapf while they were reading that passage?)
Just to be clear, neither the sheriff nor the judge is talking about the ability to staff undercover operations today, or even in the immediate future. As the sheriff stated during the trial, revealing the names of some of these officers “would hamper the officer’s ability from the beginning of his or her career to engage in undercover field work.” So, we’re talking about people who don’t currently work in undercover operations but who may do so — or may not —some time, any time in the future.
And to further clarify, he’s not just talking about the undercover operations we traditionally think of where someone assumes another identity to infiltrate a criminal enterprise or to get close to someone under investigation. These current and future undercover operations include, according to the sheriff’s testimony, officers sitting in unmarked cars but wearing their badges and their guns, and with access to tactical gear within their cars.
The policy flaw in the judge’s decision is that it allows a major category of public employees to remain anonymous. Specifically, it gives individuals who have the power of life or death over their fellow citizens to be paid from taxpayer funds without any accountability. In Culpeper, two brothers of the sheriff, who is under federal indictment on bribery charges, were paid more in accrued leave payouts than anyone else in the department. How can we know that if they are allowed to remain anonymous within a salary data set?
The legal interpretation flaw in the judge’s decision is that there is literally no mention of § 2.2-3705.1(1) in the entire 6-page opinion. Zero. There is no attempt to square how a mandatory provision can be usurped by a discretionary one. There is lip service to FOIA’s policy statement, but no recognition of the policy objective of fiscal accountability.
The logical interpretation flaw in the judge’s decision is that it does not explain why it’s different when a name is revealed on an officer’s name tag. It also doesn’t explain how they would get around a situation where a requester went in and asked for the salary information of Officer John Doe, or Captain Mary Smith or someone else whose name they already know. The name is the name is the name. It’s just as likely -- or unlikely, as the case may be — that research will be done, information will be posted online and the sheriff’s ability to staff undercover operations would be compromised. There is nothing magical about a name because it’s in a spreadsheet.
It does, but it shouldn’t have anything to do with what Alice Minium and OpenOversightVA do or think about law enforcement. It’s not about Backing the Blue or All Cops Are Bad. This is basic financial accountability and our right as citizens to know how the government we provide the capital for uses that money to carry out the work we empower them to do.
So, yes. I feel like throwing in the towel right now because government departments are turning themselves inside out to prevent citizens from knowing how their taxes are spent. And judges are buying it.
