Judge Rules City Must Release Police Record
Lexington News-Gazette 12.23.05
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
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.
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
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."
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."
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.
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."