If you follow transparency and open-records news, you might have heard about what’s going on in Virginia, where the state Senate last week approved a bill to make the names and training files of law-enforcement officials “excluded from mandatory disclosure” under the state Freedom of Information Act.
In other words: If the bill becomes law in its current form, when a reporter or private citizen asks a local police department for a list of officers on staff, the department could choose to simply reject it. It’s a remarkable piece of legislation, and journalists in the state have been doing a good job noting its unprecedented nature and pointing out how the law’s broad language raises some fairly absurd questions about what it might mean in practice.
What you might not know is that the journalist whose digging seems to have prompted this proposal pursued a very similar line of reporting not too many years ago. But in that case—in another state, and before accountability for police abuses had become a national story—the discussion went in a very different direction.
The journalist in question is Gary Harki, now the database reporter at The Virginian-Pilot. Before coming to The Pilot, Harki worked at The Charleston Gazette in West Virginia. There, in 2008, Harki got on to a story involving a cop who’d beaten a black man in front of his white wife and their child at a gas station. The officer was later sentenced to prison for civil-rights violations. In covering the saga, Harki learned that the officer had bounced around different police departments and was known as a problem cop.
That led to more reporting. Eventually, Harki asked for access to a state police database so he could track the movement of officers, and state officials worked with him on an open records request for the information. With the data, Harki identified a pattern of police with disciplinary issues moving from department to department. He wrote a series of stories about it, and the legislature paid attention. In 2011, the legislature passed a bill adding an additional layer of state oversight when officers move from one department to another.
Fast forward a few years, and Harki is now trying to replicate his work—in Virginia, where some lawmakers are known to take a dim view of the press, and in a different national environment, when Black Lives Matter protests make headlines and police lobbyists are increasingly on the defensive.
In June 2015, Harki requested the names of police officers who work in departments across the state, along with information about where they work and for how long. After a lengthy negotiation, the state ultimately refused to release the information. In October, The Pilot sued for access.
A month later, the paper won in court, and Harki got the records.
And three months after that, the Senate voted to change the law, so the type of reporting Harki is trying to do would be impossible.
— Matt McKinney (@Mmckinne17) February 16, 2016
“I think the fact that we got a copy of those records is the catalyst for the legislation,” Harki told me, and he’s got reason to think that. As The Pilot reported, the bill’s lead sponsor, Sen. John Cosgrove (R-Chesapeake), is from The Pilot’s area. He even mentioned the lawsuit in a committee hearing as justification for the new law.
“The reason I brought this forward: There was a court ruling in Norfolk,” Cosgrove said in a Feb. 2 hearing. “The Virginian-Pilot had requested this type of information—salary and position—and the court ruled that that was actually open to access.”
Cosgrove did not return a call seeking comment for this story, but he and others have cited safety concerns, arguing that the release of information could expose undercover police or put officers at greater risk of harm from terrorists or hackers.
Harki is unpersuaded by that. “I think the real reason is they know this information is a window into legitimate problems within the state’s police force, and they don’t want to deal with those problems or be embarrassed,” he said.
Though it has passed the Senate, the law might not go anywhere. Open government advocates like the Virginia Coalition for Open Government are pushing back against it. The Virginia Press Association has asked Harki to speak about the proposed law during a subcommittee hearing in the House of Delegates this week.
The National Freedom of Information Coalition is also tracking the bill, along with others around the country that would restrict access to information about police.* For example, a proposed measure in New Jersey would exempt from disclosure information about state police detectives, including “name, title, position, salary or any other identification that would reveal the identity of a detective.” (A controversy erupted in that state last year when state police declined to name an officer involved in a shooting death.) In Oregon, lawmakers in the House passed a bill that was rushed through to conceal the identity of the officer who shot one of the leaders of the Malheur National Wildlife Refuge occupation.
Even in that context, the Virginia bill “is a new one for us in terms of… just creating a blanket exemption of police officers,” said Dan Beverly, interim director of the NFOIC.
Fortunately, one state where there have been no proposals for new restrictions is Colorado, where The Denver Post—though it was denied access to a key database—has embarked on a series about bad cops who “jump from department to department despite committing transgressions that would bar them from law enforcement jobs in many states.”
Well, at least there’s no new law proposed yet.
*The original version of this sentence incorrectly stated that the NFOIC is based in Florida. In fact, it is based at the University of Missouri School of Journalism.