The Virginia Coalition for Open Government

Judge Michael Irvine has ruled the contents of an investigation resulting from a complaint filed against a Lexington police officer is not exempted from public disclosure under the Virginia Freedom of Information Act.

The complaint was filed with the Lexington Police Department against patrolman Michael Scott Fitzgerald by David Buckner, a Rockbridge County resident. The investigation into the complaint was conducted by the police department.

The judge’s ruling came after a petition for mandamus was filed by Buckner against Lexington Police Chief Bruce Beard and Fitzgerald. Buckner had been arrested one year ago by Fitzgerald on charges of driving under the influence. He pled guilty to the charges but later appealed the case and the charges were subsequently dropped.

In May of this year, Buckner filed the complaint, alleging Fitzgerald had given perjured testimony during Buckner’s trial on the appeal on the DUI charge. The investigation conducted by the department determined that Fitzgerald did not intentionally falsify information in order to obtain a conviction. Buckner requested a copy of the results of the investigation; but city officials, according to previously established policy, refused to provide Buckner with the information. The investigation, according to city officials, is considered to be part of the employee’s personnel records as defined by the state code and therefore exempt from disclosure of the Virginia Freedom of Information Act.

City officials will have 30 days in which to respond to an order for the release of the contents of the investigation prepared by the attorney for Buckner. They can either opt to release the information or appeal Irvine’s judgment to a higher court. Both City Manager Jon Ellestad and attorney Larry Mann told City Council during its regular meeting last week that they have no strong opinions about the release of the investigation at this time. “It cuts both ways,” Mann said. “The question is how the public best is served. We want to protect our officers, but how can we rebut the complaint if the investigation is not made public.”

In his opinion issued on Dec. 13, Judge Irvine stated the investigative report is not “‘pertinent personal information’ of the same kind or nature as those specifically mentioned in the definition of ‘personnel records’” as defined by the Virginia state code. Irvine goes on to say “the requested investigative report is located in the police department, not the ‘official personnel file’ maintained by the office of the city manager.”

In fact, based on testimony delivered by Beard at a hearing on the matter in early November, Judge Irvine in his opinion called the city’s practice of maintaining personnel records “perplexing.”

“The city,” he said, “separates the complaint from the investigation; it only includes the investigation in the personnel records. Counsel for Beard argues that people would not be candid during an investigation if they knew that the investigation would be available to others. However, by putting the investigation in the personnel file, the city makes it available to the very person being investigated. Furthermore, the city does not include information that a person would expect to be in a personnel file, such as communications regarding promotions. These items are kept in a desk drawer. Finally, none of these files constitute the ‘official’ file. The ‘official’ file is kept in the city manager’s office. This convoluted practice of keeping personnel records makes it difficult to rely upon the practice itself in determining whether or not the investigation is a personnel record.”

Mann acknowledged the question has become “as much of a policy matter as a legal issue. We need to review policy as regards to personnel records,” he said. Council members also expressed concern that the order to release the contents of the investigation might set a legal precedent.

Judge Irvine, in his written opinion, also noted that the criminal case against Buckner was dismissed” not because of anything the officer said or didn’t say at the trial. Rather, the case was dismissed because expert testimony was introduced that created doubt as to [Buckner’s] blood-alcohol content at the time he was driving.”