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Montgomery County police, inspector battle over records

ANNAPOLIS — Attorneys for police officers and Montgomery County’s inspector general clashed Monday in the state’s highest court over access to documents held by the Internal Affairs Division, which investigated the police department’s handling of a car crash involving a former assistant fire chief and allegations of a potential drunk-driving cover-up.

The county’s inspector general is seeking access to the documents for his own report on the Internal Affairs Division’s investigation.

Martha L. Handman, the officers’ lawyer, told the Court of Appeals that IAD documents cannot be turned over to the inspector general because they constitute “personnel records” of her clients, who responded to the November 2008 crash and were later investigated — and cleared — by Internal Affairs.

The documents contain “raw data that they had no chance to challenge,” Handman said of her clients, officers Edward A. Shropshire and Willie E. Parker-Loan. “It is fundamentally unfair for the government to release [documents] that contain raw, unsubstantiated data.”

But the county’s lawyer, Karen L. Federman Henry, told the court the documents are sought for an official, investigative purpose and must be disclosed under Maryland’s Public Information Act. Inspector General Thomas Dagley would only use the documents in preparing a report on his investigation, which he would submit to the county executive and county council, Henry said.

“The county must be able to police itself,” added Henry, of the Montgomery County attorney’s office. “The auditor needs to see those records.”

Shropshire and Parker-Loan responded to a pile-up in which Greg DeHaven, then Montgomery County’s assistant fire chief, crashed a county-owned vehicle into three cars while driving home after serving in the honor guard at a Washington Redskins home game in Landover.

The officers performed a field sobriety test on DeHaven after a junior police officer smelled alcohol on his breath, according to published reports.

DeHaven was not charged with drunk driving, but was issued a $130 ticket for failing to control his vehicle’s speed to avoid collision.

The IAD investigation “found no evidence of wrongdoing” by Shropshire or Parker-Loan. Dagley subsequently launched an examination of the IAD investigation and sought the division’s records.

Shropshire and Parker-Loan sued to prevent the documents from being released by Montgomery County Police Chief J. Thomas Manger to the inspector general.

Montgomery County Circuit Judge Michael D. Mason last April permitted the transfer of the documents to Dagley but with personnel information redacted. The documents have not been transferred pending appeal.

Both the county and the officers sought review, and the officers appealed directly to the Court of Appeals, which agreed to hear the case.

At oral arguments on Monday, Henry, the county attorney, drew a barrage of questions from judges who voiced concern about the officers’ personnel records becoming part of the inspector general’s report and made public after its presentation to county leaders.

Judge Sally D. Adkins, for example, said the officers’ names would inevitably be disclosed, particularly if the inspector general were to conclude IAD’s investigation was “slipshod.”

“Could this result in a redo of the investigation process of the officers?” Adkins asked.

Henry responded that a renewed investigation would be “possible” but that would be a decision for the county leaders, not the inspector general. Dagley seeks the documents only to aid in his examination of IAD’s methodology and procedure, Henry said.

“He does not have the authority to initiate discipline,” she added. “The inspector general is not doing this for disciplinary purposes.”

Judge Lynne A. Battaglia interjected that the inspector general presumably does not need the IAD documents, as he could conduct an independent investigation and question witnesses and officers, including Shropshire and Parker-Loan.

But Henry responded that such a duplicate investigation would be inefficient and unnecessary because the documents Dagley needs are within IAD’s possession and must be disclosed to the inspector general under the Public Information Act.

“The inspector general shouldn’t have to reinvent the wheel,” Henry said. “They [the documents] should be available to the inspector general.”

But Handman, the officers’ attorney, said the inspector general neither needs nor is legally entitled to the IAD’s report, which is exempt from the Public Information Act as a personnel record.

“He can go and investigate this” on his own, said Handman, a Gaithersburg solo practitioner. “He can ask to speak with my clients.”

The high court did not indicate when it will render a decision in the case, Montgomery County, Md., v. Shropshire et al., No. 84, September Term 2010.

NAACP case pending

The Court of Appeals has another pending case that addresses the balance between the state Public Information Act and personnel records.

The court heard argument Nov. 5 on the NAACP’s request for documents to determine if the Maryland State Police is taking adequate steps to prevent troopers from pulling over motorists based on their skin color.

Under questioning from the court Monday, both Handman and Henry said their case presents a similar conflict but that the facts are very different.