- The Washington Times - Monday, June 11, 2001

RICHMOND (AP) — The Virginia Supreme Court has ruled that prosecutors can withhold police reports from defendants in criminal cases.
The decision upholds a Fairfax County judges ruling that commonwealths attorneys can provide summaries rather than investigators original accounts.
Although prosecutors in some jurisdictions generally provide defense attorneys with police reports, Fairfax prosecutors and police guard them more closely.
Fairfax Commonwealths Attorney Robert F. Horan Jr. said he believes that releasing reports will discourage witnesses from cooperating because their identities will be revealed.
Instead, Fairfax prosecutors type a summary of the crime, including information on the time, location, injuries and loss.
Last year, while representing a person accused in a carjacking, defense attorney James G. Connell III wanted more. So he filed a Freedom of Information Act (FOIA) request with his adversary, Assistant Commonwealths Attorney Andrew J. Kersey, seeking the police reports.
When Mr. Kersey refused, Mr. Connell sued. Mr. Connell noted that Virginias Freedom of Information Act, revised in 1999, requires law enforcement officials to provide "criminal incident information relating to felony offenses." Officials also may provide or withhold "complaints, memoranda, correspondence and evidence relating to a criminal investigation or prosecution."
But Fairfax Circuit Court Judge Jane Marum Roush noted in May 2000 that the law defined criminal incident information as "a general description of the criminal activity." She ruled that the summaries were fine.
Judge Roush also ruled that prosecutors were not a "public body" under the Freedom of Information law and were not required to answer such requests in five days.
The state Supreme Court, in an opinion written by Justice Lawrence L. Koontz Jr., agreed Friday, saying that "a summary of the original records is consistent" with the law.
Justice Koontz added in a footnote that the opinion applied only to requests to prosecutors in ongoing cases and should not be applied to other state officials.
Mr. Connell said he was disappointed but that there was a "bright side of the opinion." In it, the judge makes it clear that FOIA applies to police officers even if it does not apply to commonwealths attorneys.
Mr. Connell said he would soon file FOIA requests with Fairfax police.
Lucy Dalglish, who filed a brief in the case for the Reporters Committee for Freedom of the Press, said she hoped the ruling would encourage the legislature to overhaul the law.
"They seem to be encouraging legislation to fix FOIA so that it applies to constitutional officers," Miss Dalglish said.

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