VIRGINIA BEACH — Just three days after what Mayor Bobby Dyer called “the most devastating day in the history of Virginia Beach,” local attorney Kevin Martingayle called on city officials to release the assailant’s personnel file.
“I sent an email to all of the council members, the city manager, and the city attorney,” Martingayle said.
Recently, Jason Nixon went public with Martingayle as his attorney requesting an immediate and transparent third-party investigation into the events surrounding the May 31 shooting that would claim the life of his wife, Kate, and 11 others.
Debbie Borato’s sister, Michelle “Missy” Langer, was also killed that day. Borato said she doesn’t know what’s in the shooter’s record, but releasing it would probably answer some of her questions.
“Maybe there was odd behavior or signs that this man should’ve been let go or sent to counseling — something that could’ve prevented this,” she said.
Even though the shooter, DeWayne Craddock, died in a gunbattle with police on May 31, his records and personal information is still protected by the Freedom of Information Act’s (FOIA) Personnel Records Exemption.
Deputy city attorney Roderick Ingram said there are some exemptions with conditions that would invalidate the exemption — the death of an employee is no such situation.
“For example, the law says we can withhold documents about contract negotiations until the contract is signed,” he said. “Once the contract is signed, then the records can be released.”
According to the city’s Open Data Portal, there are at least 16 official FOIA requests for information pertaining to the nine-year public utilities engineer with more requests “pouring in,” Ingram said.
Ingram also said although Martingayle’s email “regards public records,” it was not an official FOIA request.
Had Martingayle submitted a formal FOIA request it would have garnered a response within five business days as prescribed by the law saying, “we are going to withhold those records pursuant to the personnel records exemption,” Ingram said.
However, the ability to waive the exemption is within the discretion of the city, Ingram noted.
“In the emails, I outlined City Council can direct the release of those records,” Martingayle pointed out.
Councilman Michael Berlucchi said he received Martingayle’s request to release Craddock’s personnel files and although he’s not opposed, he is cautious to say if information should or shouldn’t be released during the criminal investigation.
“They need to grieve and in order to grieve we need to know what happened, all of us,” Berlucchi said. “For me, it’s not a matter of whether or not the investigation would happen after the law enforcement investigation, it’s a matter of would the investigation somehow jeopardize police work and that I would need more information about.”
Berlucchi said he has also taken into consideration how the public may perceive the results of the criminal investigation if calls for an independent investigation aren’t met.
“We need to have confidence in the facts that are presented and if the families and the public are calling for an independent investigation and that will provide more confidence and transparency, then I’m all for that,” he said.
Ingram said he has no doubt the city will eventually release the shooter’s personnel file but “it’s not happening today while law enforcement is trying to do their investigation.”