PD Discipline (Charleston Police Department)
| Multi Request | PD Discipline |
| Submitted | Jan. 23, 2021 |
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Communications
From: Justin Sparks
To Whom It May Concern:
Pursuant to the West Virginia Freedom of Information Act, I hereby request the following records:
All materials and records describing and sufficient to show/disclose all allegations of misconduct made and all disciplinary proceedings taken against any officer, employee, or representative of this policing agency.
The requested documents will be made available to the general public, and this request is not being made for commercial purposes.
In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.
Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 5 business days, as the statute requires.
Sincerely,
Justin McLachlan
From: Charleston Police Department
All FOOA requests are handled by the city attorneys office. You will need to file your request with them.
Lt Randy Sampson
Charleston Police Dept.
(304) 348-6400
From: Charleston Police Department
All FOIA requests are handled by our city attorney's office. You will need to file your request with them.
Lt. Randy Sampson
Charleston Police Department
Records Division
304-348-6400
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~WRD000
From: Justin Sparks
Dear Mr. Sampson,
Thank you for your reply. The Freedom of Information Act requires that requests for access to records be made to the person in charge of the government body: “A request to inspect or copy any public record of a public body shall be made directly to the custodian of such public record.” W. Va. Code § 29B-1-3(b). “Custodian” means the elected or appointed official charged with administering a public body. W. Va. Code § 29B-1-2(1).
I cannot send the request to the city attorney's office, as they are not obligated to produce records under the control of your department. As these requests to police agencies frequently end in litigation, I have to follow the law in making the request, as does the Charleston Police Department. If you'd like the city attorney to handle the request for you, you made forward it to them.
Please be aware, however, that the statutory deadline for the production of responsive records is today, January 29, 2021. West Virginia Code section 29B-1-3(d).
Sincerely,
From: Charleston Police Department
The records you have requested are not under my control. They would be under the control of our Professional Standards Division. I am over the department that is in control of records such as crash and incident reporting. I do not have access to nor control of the information for which you seek.
Lt Randy Sampson
Charleston Police Dept.
(304) 348-6400
From: Justin Sparks
Mr. Sampson,
Thank you for providing information regarding which department physically houses the records. I assume you can forward the request to them, as I do not have email addresses for anyone in that department. If you can provide a contact, I can gladly forward the request myself.
In Hurlbert v. Matkovich, 233 W. Va. 583, 760 S.E.2d 152 (2014), the West Virginia Supreme Court held that its "jurisprudence . . . clearly demonstrates a liberal construction of “custodian” and not only countenances disclosures if the requested records are, at a minimum, in possession of the public entity, but has been extended to require disclosure of documents over which the public body does not possess, but merely exercises control. See Syl. Pt. 3, Daily Gazette Co., Inc. v. Withrow, 177 W. Va. 110, 350 S.E.2d 738 (1986), superseded by statute on other grounds, Daily Gazette Co., Inc. v. W. Va. Dev. Office, 206 W. Va. 51, 521 S.E.2d 543 (1999) (holding that “lack of possession” not determinative where the writing is “subject to the control of the public body” (emphasis added)); see also Kissinger v. Reporters Comm., 445 U.S. 136, 151, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980) (“[A]gency possession or control is prerequisite to triggering any duties under the FOIA.” (emphasis added)).
Sincerely,
Justin McLachlan
From: Charleston City Clerk
Dear Mr. McLachlan:
Your FOIA request wherein you requested "[a]ll materials and records describing and sufficient to show/disclose all allegations of misconduct made and all disciplinary proceedings taken against any officer, employee, or representative of this policing agency," was reviewed in accordance with West Virginia Code §29B-1-1, et seq. and applicable legal standards. West Virginia Code §29B-1-3(d) requires all FOIA requests to "state with reasonable specificity the information sought." This request is overly board and unduly burdensome as it contains no date, name, or other information to show what documents you are seeking. If you would please specify and/or limit the time period or types of information you are seeking, we can re-evaluate the request.
The City reserves its right to assert any exemption from disclosure pursuant to West Virginia Code §29B-1-4, the common law, and other applicable law. With the submission of this letter, the response of the City to your request is complete. I appreciate the opportunity to assist you with this matter and the City elects to waive assessing any fees respecting your request as authorized in West Virginia Code §29B-1-3. You are further advised that the Freedom of Information Act affords you the opportunity to seek injunctive or declaratory relief in the Circuit Court of Kanawha County. As always, if we have misunderstood your request, or if you are requesting different or additional information, please contact our office.
Sincerely,
Tiffany
Tiffany D. Redman, Esq.
Senior Staff Associate
Office of the City Attorney
501 Virginia Street, East
Charleston, WV 25301
Phone: (304)-348-8031
Fax: (304) 348-0770
PRIVILEGED AND CONFIDENTIAL COMMUNICATION The information transmitted in this email is intended only for the person or entity to whom it is addressed and may contain confidential and/or privileged material. Any use of this information other than by the intended recipient is prohibited. If you receive this message in error, please send a reply e-mail to the sender and delete the material from any and all computers.
From: Justin Sparks
Hello Ms. Redman,
My apologies, the date frame is for the last five years. It was inadvertently omitted. I can't provide you with names, as I do not yet know them. That's why I'm requesting the records. No other police agencies in the state have so far had trouble identifying relevant documents when presented with identical requests. Given the resources of the City of Charleston, I presume you'll be able to figure out what is responsive and what is not.
Sincerely,
Justin McLachlan
From: Charleston Police Department
Dear Mr. McLachlan:
Your FOIA request wherein you requested "[a]ll materials and records describing and sufficient to show/disclose all allegations of misconduct made and all disciplinary proceedings taken against any officer, employee, or representative of this policing agency," which you later specified for the previous 5 year period, was reviewed in accordance with West Virginia Code §29B-1-1, et seq. and applicable legal standards. The internal disciplinary records of CPD officers are specifically exempted from disclosure by West Virginia Code §29B-1-4(a)(2), (4), (8), and (21). Nevertheless, in an effort to provide transparency please find responsive information to your request below.
The number of complaints for officer misconduct received for the last 5 years: 2016 - 21; 2017 - 27; 2018 - 11; 2019 - 15 and 2020 - 12.
The number of officers that have been the subject of complaints for the last 5 years: 2016 - 30; 2017 - 36; 2018 - 17; 2019 - 20 and 2020 - 14 .
The number of disciplinary actions, broken down by the type of disciplinary action taken are as follows:
Retraining
Counseling
Suspension
Reprimand
Resignation/ Termination
2016
2
1
2017
4
2
3
1
2018
1
2019
2
1
1
2020
1
8
4
1
The City reserves its right to assert any exemption from disclosure pursuant to West Virginia Code §29B-1-4, the common law, and other applicable law. With the submission of this letter, the response of the City to your request is complete. I appreciate the opportunity to assist you with this matter and the City elects to waive assessing any fees respecting your request as authorized in West Virginia Code §29B-1-3. You are further advised that the Freedom of Information Act affords you the opportunity to seek injunctive or declaratory relief in the Circuit Court of Kanawha County. As always, if we have misunderstood your request, or if you are requesting different or additional information, please contact our office.
Sincerely,
Tiffany
Tiffany D. Redman, Esq.
Senior Staff Associate
Office of the City Attorney
501 Virginia Street, East
Charleston, WV 25301
Phone: (304)-348-8031
Fax: (304) 348-0770
PRIVILEGED AND CONFIDENTIAL COMMUNICATION The information transmitted in this email is intended only for the person or entity to whom it is addressed and may contain confidential and/or privileged material. Any use of this information other than by the intended recipient is prohibited. If you receive this message in error, please send a reply e-mail to the sender and delete the material from any and all computers.
From: Justin Sparks
Hello Ms. Redman,
Thank you for providing the statistics in your response, it is very much appreciated. However — other police agencies in these state have provided documents in response to identical requests. In 2013, the WV Supreme Court ruled that the exemptions you've cited do not apply to closed investigations of police misconduct: "... the public has a right to access the complaint, all documents in the case file, and the disposition, with the names of the complainants or any other identifying information redacted in accordance with the confidentiality requirements established by West Virginia Code of State Rules §§ 81–10–1 to – 11 (2008). Charleston Gazette v. Smithers (W. Va. 2013) 752 S.E.2d 603, 624.
Could you please re-evaluate your decision in light of the Court's ruling. It seems, if they are asked to rule on the question again, they would likely make the same decision.
Sincerely,
Justin McLachlan
From: Charleston Police Department
Dear Mr. McLachlan:
This is in response to your follow up to your previous F.O.I.A. request. Again, we believe the documents you have requested are specifically exempted from disclosure by West Virginia Code §29B-1-4(a)(2), (4), (8), and (21). Additionally the documents are exempt pursuant to the Supreme Court of Appeals’ decision in Manns v. City of Charleston Police Dep’t., 209 W. Va. 62, 550 S.E.2d 598 (W.Va. 2001).
The City reserves its right to assert any exemption from disclosure pursuant to West Virginia Code §29B-1-4, the common law, and other applicable law. With the submission of this letter, the response of the City to your request is complete. I appreciate the opportunity to assist you with this matter and the City elects to waive assessing any fees respecting your request as authorized in West Virginia Code §29B-1-3. You are further advised that the Freedom of Information Act affords you the opportunity to seek injunctive or declaratory relief in the Circuit Court of Kanawha County. As always, if we have misunderstood your request, or if you are requesting different or additional information, please contact our office.
Sincerely,
Tiffany
Tiffany D. Redman, Esq.
Senior Staff Associate
Office of the City Attorney
501 Virginia Street, East
Charleston, WV 25301
Phone: (304)-348-8031
Fax: (304) 348-0770
PRIVILEGED AND CONFIDENTIAL COMMUNICATION The information transmitted in this email is intended only for the person or entity to whom it is addressed and may contain confidential and/or privileged material. Any use of this information other than by the intended recipient is prohibited. If you receive this message in error, please send a reply e-mail to the sender and delete the material from any and all computers.
From: Justin Sparks
Thank you for your response Ms. Redman — just so we can be very clear, you're citing a 2001 case that was overruled by the 2013 case I cited as the basis of withholding these documents?
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following West Virginia Freedom of Information Act request, copied below, and originally submitted on Jan. 23, 2021. Please let me know when I can expect to receive a response.
Thanks for your help, and let me know if further clarification is needed.
From: Charleston Police Department
Dear Sir,
Attached to this email is our response to your request, originally sent on February 8, 2021. Again, with the submission of this email and the information contained within, the response of the City to your request is complete.
Thank you,
Tiffany
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FOIA