McCarthy v. City of Virginia Beach

Kevin McCarthy sought records from the City of Virginia Beach's police department related to his son's suicide. The city refused the request, saying it was the department's policy to refuse all requests for suicide reports under the criminal investigative records exemption. McCarthy's attorney, Kevin Martingayle, filed a FOIA request for the policy the city referred to. The city said the policy did not exist in written form -- it was an unwritten policy or practice.

McCarthy filed suit against the city, arguing in part that the city cannot use a blanket denial and must use its discretion on a case by case basis. A blanket policy essentially makes the exemption mandatory, which is not what the legislature intended. The city counters that FOIA doesn't mandate how its discretion must be implemented, and that it is within the city's discretion to deny any records that fall under the exemption.

Below are McCarthy's complaint, followed by the city's demurrer (response) and then followed by VCOG's amicus brief, prepared by attorney Barry Koch.

COMPLAINT

DEMURRER

AMICUS BRIEF

PLAINTIFF'S MEMORANDUM OF LAW