Saturday, October 26, 2013

Personal Bias or Conflict of Interest: The Virginia State Police is Hiding Behind a Flexible Statute Denying FOIA Requestors They Don’t Like, but Complying With Those They View Will be Good P.R. for the Registry

I do my very best to follow the rules and the chain-of-command. But when policies are ignored, when favorites are played and when discrimination is the chosen path by those in authority who fear releasing facts /data will prove a need for reform I am left with no other choice but to make the effort to discriminate against me known.

The Virginia State Police refuses to comply with FOIA requests for the Virginia Sex Offender Registry because they are personally prejudiced against me, but they comply when others make similar requests.

In October 2013 I learned that the Virginia State Police was fulfilling Freedom of Information Act (FOIA) requests for data from the Virginia Sex Offender Registry to out-of-state organizations and in-state researchers, some of the same data they denied to me in 2011 and 2012.

In February 2011 only one of my requests was answered the rest were denied including:
1.       the number of female offenders and the number of male offenders
2.      the number of offenders who were 25 years or younger when convicted
3.      the number of offenders convicted in another state 

In May 2012 again only one of my requests was answered but I was charged $26.36, the rest were denied including:
1.       the number of female and the number of male offenders
2.      the number of offender’s classified as Non-Violent and Violent
3.      the number of offenders aged 50-59, 60-69, 70-79, 80-89 and 90-99
4.      the number of offenders listed as unemployed
5.      the number of offenders listed as self-employed (same address as their home)
6.      the number of offenders listed homeless or mobile (an address that is not a residence)
7.       the number of offenders that petitioned to be removed from the registry in each of the years 2006 through 2011.
8.      of those that petitioned how many were successfully removed from the registry in each of the years 2006 through 2011.
9.      the number of offenders with charges before 1985, 1990, 1995 and 2000 

The VSP based the 2012 denial on the Virginia statute 2.2-3706(H), so at that time I gave up on FOIA requests. 

I have never requested a list of offenders birth dates, SSN’s, phone numbers, email addresses or vehicle registrations I believe that type of specific information should be denied in a FOIA request. 

Then in October 2013 I came across 3 separate examples of the Virginia State Police sharing data from the Virginia Sex Offender Registry with other requestors. 

1)      Longwood University Authors of Neighborhood Tipping and Sorting Dynamics in Real Estate: Evidence from the Virginia Sex Offender Registry. 

They were given 10 years of data by the Virginia State Police
Each offenders
1.       past addresses, including all move-in and move-out dates
2.      current address
3.      age
4.      sex
5.      race
6.      perpetrated crime
7.       Violent or Non-Violent Status 

2)     The National Center for Missing and Exploited Children’s May 29, 2013 U.S. Map of Sex Offenders listed 19,901 Registered Sex Offenders in Virginia. That total would have come from a specific request to the VSP.

3)     Klass Kids Foundation as of July 30, 2013 listed 20,174 Registered Sex Offenders in Virginia. That total also came from a specific request to the VSP. 

In contacting a few different Virginia Organizations in October about the VSP cherry-picking FOIA requests I learned the following. 

In July 2012 the statute the VSP used to deny my request  was re-codified and is now found at 2.2-3706(A)(2)(k) 

k. Records of the Sex Offender and Crimes Against Minors Registry maintained by the Department of State Police pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1, including information obtained from state, local, and regional officials, except to the extent that information is required to be posted on the Internet pursuant to § 9.1-913; and

One reason for the re-codification of this section and all of the other provisions dealing with access to law enforcement records was to emphasize that there are certain records that MUST be released, MAY be released, and CANNOT be released.  

The exemption from the VSP in May 2012 fell under the MAY be released. Law enforcement thus MAY release the information if they choose to, but they do not have to.  

Usually when discretion is selectively exercised it is when information about THIS situation is released but not THAT situation. That is, they're choosing to release/withhold based on the content of the record.  

When the same information is being released/withheld based on who is doing the asking. It is not exactly prohibited under FOIA (discretion is discretion is discretion), but it is poor public policy to pick and choose among requesters 

FOIA does not require a government agency to create a record that does not exist. While we may think certain records or databases contain unique data points that we think are relevant, that may not be the actual case. Being too specific in the breakdown, grouping or sorting of data could result in a denial. On the other hand, the manipulation of a database to excise or specifically include/exclude data fields is not considered creating a new record. (See 2.2-3704(G)) Manipulation of fields, however, is different from going through those fields to organize or sort the data in a different manner. 

It appears the VSP is biased against me a long held suspicion that couldn’t be proven, until now.  

Why would the VSP be prejudice against me?  

Because I use data and statistics to support or oppose proposed legislation at the yearly General Assembly session versus the traditional method of myth, assumption and fear to push through flawed legislation that used to regularly pass through in a block vote.  

Most times when I’m opposing a proposed bill at session that is based on myth and fear instead of facts the VSP Legislative Liaison is standing a few feet away supporting the bill to the subcommittee. 

Then there are the “good” bills that I’ve found sponsors for over the years that the different VSP Liaisons have opposed to the House and Senate sub-committees claiming the Department doesn’t support the end result or they claim that they are already making the information readily available to RSO’s when in fact they were not. 

These are the bills.
1.      Written Notice of Restrictions /Regulations Given to RSO’s each year after G.A by VSP
2009-HB2225, 2010-HB1328, 2011-HB2382 and 2012-SB420
2.     Employer/Company Name Removed from Public Registry so Employers aren’t being shamed
2010-SB635, 2012-HB413
3.     Procedural Changes Making Compliance Attainable
2011-HB1628, 2012-HB416 

Finally there have been unwritten VSP policies that they’ve applied to the registered sex offenders over the years that  were not required by law but offenders were told it was the law, or that made compliance extremely difficult if not impossible for the offender or that altered due dates arbitrarily costing the VSP more time and money in the end. 

For the last 5 years I have attempted to make RSO compliance easier and attainable so fewer “failures to register” occur in Virginia which saves the Commonwealth the time and money of filing new charges, working investigations and court trials /plea deals which could carry unnecessary incarceration. The VSP sees me as a threat and I’ve tried to overcome that perception by discussing the barriers with numerous VSP folks over the years that I encounter but instead they deny me access to data that they freely give to other groups. 

The VSP has been given the authority and discretion per the statute to either supply me with the data or they can deny me.  They deny because the VSP believes the end justifies the means. They see me as a barrier to getting new laws and harsher penalties for those listed on their registry.  

So I decided to give the VSP a 3rd chance. I submitted a new FOIA request after advising the Virginia Legislators and the VSP that I knew other requests have been fulfilled. 

On October 6, 2013 I requested the following data the current total RSO’s:
1.       ages
2.      sex
3.      race
4.      the number classified as Violent and Non-Violent
5.      the number who are unemployed
6.      the number listed as homeless or mobile (an address that is not a residence)
7.       the number who are “wanted” 

And so I waited, would they deny my third submission in three years or would they allow me access to information they have shared with others? 

On October 9 I received a letter from the VSP stating that they were utilizing an additional 7 days to respond to my FOIA request, I had high hopes with this notice. 

On October 26 I received a letter from the VSP stating: 

That pursuant to §2.2-3706(A)(2)(k) and Chapter 9 (§ 9.1-900 et seq of Title 9.1 that the custodian of the records (VSP) in his or her discretion may or may not disclose the information requested. The Department has considered your (my) request and elected to exercise its statutory grant of discretion not to release the records you (I) have requested. 

How can Virginia claim to be an Open Government when the owner of data (VSP) who also lobbies for harsher penalties, longer monitoring and retroactive application of new policies is allowed to deny access to data that could prove their stance is baseless? 

How can the citizens of the Commonwealth have faith that legislation has been thoroughly vetted and is not a knee-jerk reaction based on myth when a volunteer advocate who uses data and facts is intentionally blocked from obtaining the data by the gate-keeper (VSP)? 

I respect and appreciate all the Virginia State Police does for citizens of the Commonwealth. The majority of the employees are extremely respective and professional when monitoring and managing the 20,000+ sex offenders including when they interact with the family members. 

I am a citizen of Virginia, I am a taxpayer and I am a volunteer advocate with no funding, no legal training and no staff so the Virginia State Police hides behind a statute thinking I will give up.  

Either the data is public and available to everyone or it is available to no one. The distribution list should not be based on whom the VSP likes and dislikes or who they believe will prove the registry is successful but not for those they fear will prove it needs reform. 
Mary Devoy