Virginia Lawyers Weekly VA Lawyers Weekly
In ruling on a motion to compel documents in an investigation of a police shooting of an unarmed man in his home in August 2013, a Fairfax Circuit Court says a “criminal investigative file privilege” survives 2014 changes to the Virginia FOIA, but the privilege does not protect documents related to the shooting, most of which must be produced to plaintiffs; however, the privilege does cover documents related to the federal investigation of the shooting.
Plaintiff’s motion to compel concerns those document requests where the objection raised by Police Chief Roessler is: 1) that there is an ongoing federal criminal investigation into the shooting death of John Geer; 2) criminal investigative files are privileged; and/or 3) executive privilege. This opinion and order addresses only the first two objections to the disclosure and defers action on the claim of executive privilege, which applies to a limited category of documents.
The court finds for plaintiff as to most of the document requests and orders production of the requested documents within 30 days.
The first question – a first-impression issue – is whether a criminal investigative file privilege presently exists in Virginia. Plaintiff argues that even if such a privilege existed prior to 2014, it no longer exists in light of new statutory language added to the Virginia Freedom of Information Act, in Va. Code § 2.2-3703.1. The court holds that the privilege survives. FOIA did not create the privilege and FOIA does not now destroy it. While § 2.2-3703.1 eliminates FOIA in the context of litigation as a basis to assert a privilege against disclosure of criminal investigative files, it does not abolish the criminal investigative file privilege itself.
That determination does not end the inquiry, because of the unusual posture of the instant case. The only criminal investigation that is now being conducted is an investigation by the U.S. Department of Justice. Significantly, DOJ has not sought to intervene or lodge any objection with respect to the pending motion to compel. Even more significantly, DOJ has expressed its official position with regard to disclosure of the records of the Fairfax County Police Department. The investigative agency solely responsible for the criminal investigation has drawn a distinction between information related to the shooting and information related to the federal investigation. The court rejects the applicability of the criminal investigative file privilege in the instant case, except as it applies to the federal investigation of the shooting death of John Geer.
Since the DOJ does not define “federal investigation,” the court, for purposes of this order, defines it as: documents dated on or after Jan. 7, 2014, that were created by federal investigators or other DOJ personnel or at the direction of such federal investigators or personnel, or that relate to any federal grand jury proceedings that may exist in connection with the shooting death of John Geer.
As to these “federal investigation” documents, the motion to compel is denied at this time. Once the federal investigation has concluded, the motion to compel may be renewed as it applies to those documents not already produced pursuant to this order.
With regard to the internal administrative investigation, the court will permit the county iiifor the time being onlyiii to withhold from production documents created during, and as part of, the ongoing internal investigation. Any documents created prior to Sept. 2, 2014 are not part of the internal administrative investigation in view of the county’s representation that the internal administrative investigation was not commenced until Chief Roessler was served with the instant lawsuit.
The court issues a limited protective order: Defendant may redact from its document production the home addresses, home phone numbers, work and personal cell phone numbers, work and personal email addresses, and such identifying data as social security numbers and drivers’ license numbers of law enforcement personnel and civilian witnesses.
Harrington v. Roessler (Bellows) No. 2014-11477, Dec. 22, 2014; Fairfax Cir.Ct.; Bernard J. DiMuro for plaintiff; Karen L. Gibbons, Sr. Ass’t County Att’y, for defendant. VLW 014-8-117, 13 pp.
