Va. Beach won't release 911 tape in homeless man's death

VIRGINIA BEACH

The city is refusing to release the only 911 call reporting last week's accident in which a city trash truck driver ran over and killed a homeless man.

Michael Knockett, 52, was sleeping in a chair on the beach at 25th Street on June 28 when he was struck at about 8 a.m.

The Virginian-Pilot requested a recording of the 911 call, which came from the driver, under the Virginia Freedom of Information Act. In denying the request late Thursday, city officials cited an exemption in the act that allows, but does not require, government officials to keep private items in a "criminal investigative file."

Commonwealth's Attorney Harvey Bryant found last week that no criminal conduct was involved in the fatality and did not charge the driver. He said she didn't see Knockett before running him over.

A photo snapped by a tourist before the accident shows Knockett sitting in a colorful beach chair. Police, who have not publicly named the driver, ruled out alcohol, drugs, speed and cell phone use as factors in the accident.

"The way the law is written, it does not distinguish between a criminal investigation that has concluded and one that is ongoing," said Roderick Ingram, a deputy city attorney. "The police asked if they could lawfully withhold it, and I said yes."

Police Sgt. Richard Mlincsek, who handles department FOIA issues and said he hasn't heard the tape, said the department is keeping the recording private because of a policy not to release anything in a criminal investigation file. "I can't tell you why, other than this is standard practice," Mlincsek said. "This case is not any different than any other." He added, "Even though someone has been cleared or not been prosecuted, it's still a criminal investigative file."

One expert on government-access issues said apparent conflicts like the Beach case aren't unusual.

"When they come out and say there's no criminal activity, I would think they would treat it as noncriminal," said Alan Gernhardt, an attorney with the Virginia Freedom of Information Advisory Council, which helps resolve disputes over access to government information. "Apparently, they're choosing to maintain it's part of a criminal investigation. It's up to them to make that argument. People will argue back and forth on these. It's done all the time."

According to the act, criminal investigative files include "documents and information including complaints, court orders, memoranda, notes, diagrams, maps, photographs, correspondence, reports, witness statements and evidence relating to a criminal investigation or prosecution."

Ingram said the tape could be considered part of the file as a "witness statement" and as "evidence relating to a criminal investigation."

On Wednesday, Deputy City Manager Dave Hansen, who oversees the Public Works Department, apologized for the accident. He also backtracked on his earlier comment that Knockett had been sitting in a "depressed area" of the beach, a statement contradicted by the tourist photo.

Aaron Applegate, (757) 222-5122, aaron.applegate@pilotonline.com