Marco police cite records exemption for report that allegedly doesn't exist
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Marco Island police are citing a public records exemption for an incident report a prospective lawsuit by the woman tied to its sex on duty scandal claims doesn't exist.
Capt. Dave Baer told the Naples Daily News an ongoing police investigation is preventing the city from fulfilling a records request for a November 2015 Baker Act incident report involving the woman who has accused the department of violations of Trafficking Victims Protection Act and physical, mental and sexual abuse.
The city's application of public records exemptions raises an issue: how can the city cite an exemption if there is no actual public record as alleged?
Last week, the city received the prospective complaint accusing current and former officers James Inlow, Neil Giansanti, Kevin Hennings and Brian Granneman of using their official positions to take advantage of a woman with mental and emotional vulnerabilities and who was unable to understand or provide consent to the sexual contact.
Inlow and Giansanti resigned from the department in 2018 after internal affairs investigations were opened into their conduct. Hennings was terminated later that year. All of the investigations sustained allegations the officers had multiple sexual dalliances with the woman while they were on duty between 2015 and 2017. Granneman received a written reprimand for knowing of Inlow's on-duty conduct but failing to report it to another supervisor. He was promoted to sergeant months later.
The complaint assigns culpability to the city through claims it failed to properly train and supervise officers and that they used their positions to prey on the woman.
A lawsuit has not been filed in federal court yet as attorneys for the woman gave the city of Marco Island an ultimatum to settle the case before starting official legal proceedings.
The prospective lawsuit also brought to life a new allegation: officers did not file any police reports related to a November 2015 incident where they confiscated a weapon from the woman or Granneman transported the woman to a mental health facility the following day.
"Plaintiff is informed and believes, and thereon alleges that, at no time did Defendants' Granneman or Inlow, or any other Marco Island Police officer file an incident report, or notify their superiors concerning the foregoing events, although Inlow, as a sergeant himself on the force, occupied a supervisory position," the prospective lawsuit states.
The Daily News made the request for the report to assess the validity of the allegation about the existence of the incident report.
Baer and City Clerk Laura Litzan refused to answer whether any records existed that were responsive to the request of the Daily News.
"Because of the ongoing active investigation, the statutory exemption would apply to the request," Litzan wrote in an email.
Frank LoMonte, a University of Florida professor and director of the Brechner Center for Freedom of Information, disagreed with the city's application of the law if indeed the document does not exist.
"It's not a legally permissible response to say 'the record is exempt' if the agency knows that no record exists," LoMonte wrote in an email to the Daily News. "The agency's obligation is to do a good-faith search for any responsive records, and then either to produce the records, notify you that no such records exist, or explain why the records are exempt. If no records exist, the agency shouldn't be falsely claiming the benefit of an exemption."
Simply put, the city cannot cite a records exemption for a nonexistent record.
The city did indicate to the Daily News last week that it would investigate the newest allegations in the prospective lawsuit.
"I can say that we take all of the allegations made in the “prospective lawsuit” very seriously, and that new allegations that have not been the subject of prior internal investigation will certainly be investigated," City Manager Mike McNees told the Daily News last week. "As you know, there has been considerable activity at MIPD in terms of investigation and discipline since these allegations first came to the attention of the city, and if there is work left to be done in that regard both Chief (Tracy) Frazzano and I are committed to seeing to it."
LoMonte, however, questioned the city's use and application of the "ongoing investigation" exemption.
He said courts have defined "active" investigations for the purposes of freedom-of-information law to mean "that an arrest or prosecution is reasonably anticipated in the foreseeable future."
"That would be the question for the police department: Are you saying that you anticipate making an arrest in this 2015 case?" LoMonte wrote. "If not, then that's not a valid use of the exemption, and either the department should produce the record or should admit that no responsive records exist."
Of the officers accused of wrongdoing, only Granneman remains currently employed with the department.
The Criminal Justice Standards and Training Commission revoked Inlow's law enforcement certification earlier this year while Giansanti voluntarily relinquished his.
Hennings, who proclaimed his innocence, is attempting to regain his job with the department by going through the arbitration process.
Granneman has not been placed on administrative leave as a result of the latest allegations nor has the department announced any internal affairs investigations into him prior to responding to the Daily News' records request.