Circuit Court Judge deciding if Chesterfield police officer names can remain secret (2024)

“Undercover.”

The meaning of the word strikes at the heart of a public records fight regarding public access to basic police payroll information: the names and salaries of law enforcement employees.

To Freedom of Information Act lawyer Andrew Bodoh, the word pertains to the type of police work seen on prime-time TV: disguised officers with assumed identities, names and cover stories.

To Chesterfield County Attorney Jeffrey Mincks, the word includes every lay officer on the Chesterfield Police Department’s payroll: from the most grizzled detectives down to newly sworn-in cadets.

On Thursday, the two argued their differing interpretations in a bench trial before Chesterfield Circuit Court Judge Jayne Ann Pemberton.

The trial is a second round in a case that was appealed from Chesterfield General District Court last summer. In that case, a substitute judge ruled in the county’s favor. And it is a third-round appearance for Bodoh, who also argued an identical case involving the Hanover County Sheriff’s Office.

At issue is whether the Chesterfield Police Department complied with Virginia public records law in March 2023. Virginia citizen Alice Minium — who runs a police transparency website called OpenOversight VA — requested the names of all officers working in the department.

The department responded with a spreadsheet in which 521 of 542 names were redacted.

The county maintains that the redactions are necessary to protect its undercover program. Mincks described it as “an immensely broad” and highly valuable strategy of preventative policing that citizens cherish, allowing them to nab drug dealers and even protect concessions vendors in the county’s public parks.

Police say the program includes nearly everyone on the payroll because nearly everyone is eligible to do plainclothes police work, surveillance and other clandestine types of law enforcement.

The only witness to testify under oath on Thursday, Chesterfield police Maj. Andrea Reismeyer, said the same. Reismeyer described how one day an officer could be issuing tickets, and the next that officer could be scanning for suspicious persons from an unmarked car.

“All of them are considered undercover officers,” Reismeyer said. “It could happen any given day for any reason.”

Bodoh believes the department is improperly withholding names.

“They are withholding the names of officers who are not undercover officers, who are not on undercover details,” Bodoh said.

The legal battle has simmered for so long in part due to vague language in the Virginia Code. The code gives instructions on what can and cannot be withheld by public agencies. The code is a living document that can be amended by lawmakers in the Virginia General Assembly.

The release of payroll records is widely viewed as a bare minimum by transparency advocates and has only recently been contested by law enforcement agencies.

“No provision of this chapter ... shall be construed as denying public access to ... the name, position, job classification, official salary, or rate of pay of, and records of the allowances or reimbursem*nts for expenses paid to, any officer, official, or employee of a public body,” reads Virginia’s state code.

But Mincks believes another part of the statute allows them to do exactly that. That subsection allows for the redacting of “portions” of records that would reveal the staffing or logistics of undercover operations. He hinted that with the internet, a police officer can be easily identified. Reismeyer suggested that emerging AI technology allows the public to identify a police officer with a smartphone.

As a judge, Pemberton can legally compel the department to produce the unredacted names. As a circuit court judge, that decision would also set legal precedent that could be replicated across the state.

In court, Pemberton gave little inkling as to which way she may be leaning, but chuckled at an attempt to simplify the topic made by Bodoh.

“If you tell me the best slugger at Virginia Tech is being scouted to go to the Washington Nationals, that doesn’t mean he is on the Washington Nationals,” Bodoh said. “Related means something actual, not something potential.”

“For the record, I’m a Red Sox fan,” Pemberton joked.

Under cross-examination, Bodoh asked Reismeyer if releasing a single name would reveal whether that officer was part of an undercover operation.

“No,” Reismeyer said.

In closing arguments, Mincks said Bodoh had a “very creative dissertation” on the statute. He said compelling the police department to release officer names would hamstring county policing because of an agency policy that would prevent named officers from rotating into more secretive police roles.

“The only evidence presented here today is that Chesterfield has an incredibly expensive undercover operation,” Mincks said. “It works so well. Why? Because it works.”

Pemberton said it will be at least 42 days before she rules on the case. She is allowing both sides to submit additional briefs.

Mincks declined to take questions after the trial.

For now, however, the General Assembly has not provided a crystalline definition of what it means to be undercover.

And that has left it for Virginia judges to decide.