State police say releasing reports would invade privacy of trooper who shot Joshua Davies in Mexico.
Joshua Davies lived in this encampment, a tent pitched beneath the natural protection and visual barrier he built about a one-quarter mile walk from Rt. 69 in Parish. Davies was fatally shot by New York State Trooper Paul Darmody-Latham on Aug. 21, 2009 after Davies approached the trooper with a knife and refused orders to drop it.
It’s been nine months since a state trooper shot a man to death on a public road in Oswego County.
Joshua DaviesNo state police report has been made public. A grand jury found Trooper Paul Darmody-Latham’s conduct was justified. But that happened in a closed-door proceeding, which left no public accounting of the Aug. 21 shooting death of Joshua Davies in Mexico.
The state police say disclosing any reports would be an unwarranted invasion of Darmody-Latham’s privacy. And they say the grand jury’s decision seals all the records.
They’re wrong, according to the state’s expert on the Freedom of Information Law.
Robert Freeman, executive director of the state’s Committee on Open Government, wrote an opinion supporting The Post-Standard’s attempt to get the records unsealed.
State courts have found that records related to a public official’s performance of his or her duties are considered a permissible invasion of privacy, wrote Freeman, a state official.
“It is clear that public officers and employees enjoy a lesser degree of privacy than others,” he wrote.
The state’s grand jury argument also does not hold up in light of court rulings, Freeman said. State law requires records to be sealed after the termination of a criminal action, but that does not apply in this case, he said. The law was intended to protect people exonerated of charges from discrimination, he said.
No charges were ever filed against Darmody-Latham and, therefore, no charges were ever terminated, Freeman wrote. But he notes that courts have said the language of the law is not clear in defining what constitutes an official record in such cases.
The Post-Standard sought Freeman’s opinion in April, after the state police denied the newspaper’s request for the records.
Two years ago, the agency also cited the privacy exemption in denying The Post-Standard’s request for reports in a murder-suicide in Cicero. The newspaper took the state to court. In that case, state Supreme Court Justice Roger McDonough ruled the state police violated the state’s open records law.
The agency had argued that because James Dirk was never convicted of a crime, disclosing any reports would invade his privacy. Dirk fatally shot his estranged wife Wendy then killed himself in 2006 in their home, investigators said.
“The privacy interests of the murder-suicide perpetrator, and his relatives ... can hardly be accurately described as compelling,” the judge wrote. “There is nothing in the record to indicate that (the state police) considered the interests of public access.”
The agency appears to be at it again, Freeman said.
“For the state police to say ‘You can’t have any of it’ is simply inconsistent with the law,” Freeman said of the Davies case. “We’ve been through this before.”
The agency’s denial, in light of the earlier ruling, could result in a judge ordering the state to pay the newspaper’s attorneys’ fees if the case goes to court, Freeman said.
In the Davies case, the state police are denying the public its right to assess the actions of a public officer in the most compelling case possible — the taking of someone’s life, said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.
“The reason we have public records to begin with is to allow the public to have oversight of government operations,” Dalglish said. “It ensures that your tax dollars are being spent wisely, that people are not stealing your money and that public officials are acting appropriately on your behalf.”
The state police in recent years seem to have a reflexive “no” to all requests under the open records law, Freeman said.
Last month, The Post-Standard appealed the decision of state police Capt. Laurie Wagner in the Davies case. Five hours and 32 minutes later, the agency’s appeals officer, William Callahan, upheld Wagner’s denial.
A state police spokesman, Sgt. Kern Swoboda, declined to comment.
Darmody-Latham also declined to comment. A grand jury ruled that he was justified in using lethal force against Davies at 11 p.m. Aug. 21, when Davies came at him with a knife on Route 69 in Mexico.
The trooper shot at Davies, 27, of Parish, three times after Davies disobeyed Darmody-Latham’s commands to stop, state police said. State police have not said how many times Davies was hit nor how far he was from the trooper.
Oswego County District Attorney Donald Dodd declined to talk about what his office knew, saying he was forbidden from disclosing grand jury evidence.
Davies left behind more than 100 videotapes of himself talking about his hatred for police and expounding on his theories that the government was using mind-altering tricks to control the masses.
Davies said in the tapes that he hadn’t slept in the five days leading up to the shooting because he believed sleep was another government conspiracy. He said he was high on over-the-counter cough medicine on the day of the shooting.
--Contact John O’Brien at jobrien@syracuse.com or 470-2187.