Chesapeake: No police video; here’s your bill

Posted at 5:22 PM, May 19, 2015
and last updated 2015-05-19 17:38:11-04

Chesapeake, Va. - The Chesapeake City Attorney's Office routinely denies public-records requests for police officers' body-camera videos, and then sends a bill for the staff time spent researching and denying the request.

The city sends the bills even when there was no video recorded, according to more than 200 public-records responses from the Chesapeake City Attorney's Office.

An assistant city attorney said the agency always denies requests when the video is part of a criminal investigation, might invade someone's privacy, or involves a juvenile.

The city uses FOIA's criminal-investigation exemption to withhold video even when prosecutors drop charges, like in the case of Ruth Davenport.

Davenport was 70 when she says a police officer looking for her son roughed her up at her home and arrested her. The officer, Joel Ayala-Acevedo, said it was Davenport who was the aggressor.

After reviewing the officer's video, prosecutors dropped the charges. The city settled a lawsuit for $50,000 and fired the officer. However, the city has refused to release the video. The officer was later re-hired.

To see how police respond to citizen requests, NewsChannel 3 asked for one year's worth of Freedom of Information Act responses from all seven Hampton Roads police departments. In the thousands of pages of documents provided, we found only Chesapeake routinely issued bills for public-records denials.

Most of the requests for body-camera footage handled by the Chesapeake City Attorney's Office came from the law firm of Black and James. Ryan Samuel, the Chesapeake assistant city attorney who handled the requests, said in an email to NewsChannel 3 the defense lawyers use the Freedom of Information Act to see what videos exist, and "know the request will be denied." Samuel said the city started charging the lawyers for responding.

Hugh "Teddy" Black III told NewsChannel 3 by phone he makes the requests to find out what evidence might be available when he's considering defending citizens involved in car crashes or who are charged with crimes.

Black said he would have his bookkeeper tally the charges from Chesapeake, but then he quit returning NewsChannel 3's calls. Samuel said the city has sent more than $2,000 in bills in the past 15 months for denying body-camera requests.

The state's public-records act does not make a distinction between FOIA requests from citizens or businesses. A review of thousands of public-records responses from police departments in Hampton, Newport News, Portsmouth and Suffolk show many FOIA request come from businesses, including insurance companies, private investigators, media, and law firms. Our review did not uncover any patterns in those cities showing they treated requests from businesses differently than requests from citizens.

Virginia FOIA also does not allow a public body to ask why a requester wants records, or to treat a request differently because of how the government believes the records will be used.

Chesapeake's policy of charging for these requests runs counter to advice from the Virginia Freedom of Information Act Advisory Council, a state agency. Members wrote in a 2009 opinion: "[P]ublic bodies may wish to forego charging for small requests... FOIA does not require a public body to charge for records."

The police departments on the Peninsula and in Suffolk and Portsmouth provided NewsChannel 3 with the cover letters that accompanied all their FOIA responses in 2014. Each department charged less than $200 to respond.

However, the police departments in Virginia Beach, Norfolk and Chesapeake asked for much higher payments. Virginia's FOIA allows a public body to charge its actual cost for complying with a FOIA, and allows a government to charge even if it does not produce any documents for the requester.

For this story, NewsChannel 3 requested only the cover letters produced by the various police departments for their FOIA responses in 2014. In other words, we asked for letters the police had already made public.

Norfolk said it would cost $887 to comply because the city lumps police FOIA responses with all other city FOIA responses, and it would take a week of work to see which ones were from the police. The city's FOIA officer said Norfolk does not "use a high-tech tracking system or database for our FOIA requests," and therefore couldn't easily access police responses.

Chesapeake said it would not provide the FOIA cover letters unless we paid nearly $650 for officers to review each letter, to make sure none of the documents mentioned juveniles. The Chesapeake City Attorney's office, however, released its police-related FOIA responses at no cost.

Virginia Beach said it would cost more than $1,000 to respond. The city said all police letters and responses, including FOIA letters, subpoenas and other correspondence, are stored in a single database, and it is impossible to search the database for FOIA letters. The cost would be for a police sergeant to go through each item in the database individually.

NewsChannel 3 declined to pay the more than $2,500 the three departments required.

Megan Rhyne, the executive director of the Virginia Coalition for Open Government, says the police departments don't have to deny any of these request, including requests for body-camera video. All of that material, she said, are public records, even though some agencies don't see it that way.

"Are these the people's records, or are these my records," Rhyne said. "When you see people who view it as their own personal records, they get very stingy with release, and they take the approach of, 'These are mine, and unless you can prove otherwise, you can't have them.' "

Rhyne says Virginia's FOIA does not require police to keep records secret, but does give departments that option when the records involve criminal investigations. She says she wished more departments adopted policies to release records, instead of looking for reasons not to.

"There doesn't have to be a good reason for releasing it," she said. "You can just release it."

Lawyers for the state's FOIA council told NewsChannel 3 that even when prosecutors dismiss charges, or when police determine an event was not a crime, departments can still claim the criminal-investigation exemption forever.

Samuel, the assistant city attorney in Chesapeake, said in a separate letter to NewsChannel 3 the city decided to start charging because of the volume of requests it receives for body-camera video.

He wrote that "it became necessary to begin charging because of the City budget limitations and the personnel required to devote to the task. The Police Department has had to add a position to review the videos and divert other personnel from their assigned duties. The City's goal is always to charge the lowest amount possible."