(11/08/2010)
By Gary A. Harki
www.wvgazette.com

The Charleston Gazette filed a Freedom of Information Act lawsuit against the West Virginia State Police on Wednesday, asking for records detailing how the agency handles allegations of abuse and misconduct.

Since 2006, State Police troopers have been accused of police brutality at least seven times and sexual assault at least twice. None of the allegations have resulted in charges against a trooper.

The lawsuit, filed in Kanawha Circuit Court, requests reports produced by the department's professional standards section and comes after requests for the public information from State Police and the state Department of Military Affairs and Public Safety were repeatedly denied.

The original Freedom of Information Act requests were mailed to State Police Superintendent Col. Timothy S. Pack on May 25. They requested:

Quarterly, yearly and bi-annual reports produced by the department's internal review board for the last five years.

Data provided to the internal review board used to assist in determining if subordinates of certain supervisors tend to be employees frequently identified by the internal review system.

A copy of the central log of complaints maintained by the State Police.

According to legislative rules, the reports should include information regarding the number of external citizen complaints, internal complaints and use of force incidents for each employee. The original Freedom of Information Act Request stated that if any of the records was exempt from a FOIA request, to provide redacted copies of the material.

Those requests were denied.

State Police spokesman Sgt. Michael Baylous declined to comment on the lawsuit late Wednesday because he had yet to see it and because it is a pending civil matter.

In a letter to the Gazette last month, Assistant Attorney General John A. Hoyer, who represents the State Police, argued that the records couldn't be released because state law forbids it. He cited the state Freedom of Information Act, which says that information can be withheld if it is of a personal nature "such as that kept in a personal, medical or similar file."

Hoyer also cited a second provision in the act that says records can be withheld if they are "records of law-enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law-enforcement agencies which are maintained for internal use in matters relating to law enforcement."

According to the suit filed by Gazette lawyer Sean McGinley and the firm DiTrapano, Barrett and DiPiero, there is no exception "expressly provided for" the records in the state Freedom of Information Act.

McGinley argues that the records should be released because of a "heightened public interest because they concern a state agency's investigation of its own employees for complaints of alleged misconduct while in a position of authority. "Society's interest in disclosure of the public records requested outweighs the government's interest in keeping the records confidential," according to the suit.

McGinley also argues that the State Police are required to turn over the records because "there is no governmental interest in nondisclosure for the purpose of dealing with the detection of and investigation of a crime."

The State Police provided a copy of their seven-page annual statistical report concerning the professional standards section's activities, which was also initially requested.

According to the six-page public report produced by the professional standards section in 2009, 13 troopers were dismissed that year based on sustained allegations, up from 3 the previous year. An additional 19 resigned prior to discipline. There were a total of 112 incidents where action was taken in 2009, according to the report.

The number of total complaints for the department has gone down, from 257 in 2007 to 165 in 2009. Of the 226 allegations contained in those complaints, about 50 percent were sustained and 24 percent were not sustained. Only 6 percent were exonerated.

After the initial Freedom of Information Act request was mailed May 25, the Gazette tried several times to get the information before filing the lawsuit on Wednesday.

Joe Delong, deputy secretary with the state Department of Military Affairs and Public Safety, again denied the request in August.

"The state police have reviewed further information and determined that they will not be able to break the information down any further," DeLong wrote in an e-mailed response. "As I stated in the e-mail below there are several factors that must be taken into account when determining what information is in the public interest and what is protected personnel file information." On Sept. 24, the Gazette requested the quarterly, yearly, bi-annual reports produced by the internal review board. Hoyer again denied the request in a letter dated Oct. 4. "You may institute proceedings for injunctive or declaratory relief in the circuit court in the county where the public record is kept," Hoyer wrote.

In the last five months the FBI has started at least two investigations into possible civil rights violations by on-duty troopers.

The Charleston Gazette reported in July that the FBI is investigating allegations by Travis W. Barker that he was chained to the floor of the Princeton detachment and beaten by Trooper C.N. Workman in July 2008.

On Oct. 13, Joe Ciccarelli, FBI supervisory senior resident agent in Charleston, confirmed that former troopers A.H. Young and K.E. Young are being investigated for allegations stemming from their arrest of Brian Joseph Wilson, 32, of Charleston on July 28.

The Youngs, who are brothers, arrested Wilson and charged him with operating a meth lab, possession of pseudoephedrine in an altered state, conspiracy and assault on a police officer. Reach Gary Harki by email at   gharki@wvgazette.com   or call 304-348-5163.

www.wvgazette.com


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