RICHMOND, Va. -- A memorial continues to grow around the tree that fell on and killed a Richmond City maintenance employee who was working to remove it during storm cleanup.
A month after the September 14 accident at Libby Hill Park, the trunk of the tree, scattered limbs, and crime tape all remain.
"It's very surprising that it's taken this long to kind of clear things out of the way," said Kelly Barnes, who lives near the park.
Barnes said she passes through frequently and can't help but feel emotional when she sees the memorial.
“Someone dying in the line of duty is always heart-wrenching. It’s just a horrible way to die," Barnes said.
Multiple neighbors including Barnes told CBS 6 that, before the accident happened, a storm caused the tree to topple on its side, but it still remained elevated at a tilted angle.
Residents said they've been concerned about the tree for years because it appeared potentially dead and unsafe.
"This tree is wild. You can see through it. So, if you're walking the path coming up, you could see light through it, and then if you kind of duck down, you can actually see the river through the tree," Barnes said.
Certified arborist Joel Koci pointed out, upon casual inspection, that there was a cavity in the trunk, a hollow trunk, and a notable amount of rotting.
He said it would have been a "prime candidate" for removal prior to it failing.
"This tree had many defects," Koci said.
So, CBS 6 submitted a Freedom of Information Act (FOIA) request to the City of Richmond for previous tree risk assessments, inspections, and documented complaints to learn more about the tree's condition before it fell and needed to be removed by maintenance workers.
However, the city rejected CBS 6's request.
"I think the public needs to know what the city knew before this, basically like, critical failure," Barnes said. "It looks sketchy for the city to not release those records."
The city's FOIA officer said it was withholding the documents due to an active workplace safety investigation by OSHA. [Of note, the investigation is being conducted by the Department of Labor and Industry's VOSH program.]
The city then cited the FOIA exemption under state code 2.2-3706.1(C) which allows the government to withhold records for ongoing criminal investigations by law enforcement.
But tree risk assessments are not law enforcement records. And law enforcement investigations are different from OSHA investigations.
Richmond's FOIA Officer Connie Clay admitted the city's cited exemption does not cover OSHA investigations.
“Although the statute does not specifically state OSHA or administrative investigations, the City is relying on that portion of the statute to withhold the requested records," Clay said in an email.
FOIA expert Megan Rhyne, executive director of the Virginia Coalition for Open Government, said she disagrees with the city's position.
“It seems very odd to me," Rhyne said. “In order for them to claim this exemption, they've really got to really stretch the definition of what they're doing, and that's not what FOIA is supposed to do. FOIA tells you to interpret exemptions narrowly.”
When asked for an opinion on the city's response, Alan Gernhardt, executive director of Virginia's FOIA Council, pointed to FOIA's policy statement which states "any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law."
"Following that policy, the criminal investigative exemptions can only be interpreted to apply to criminal investigations, not other types of investigations," Gernhardt said in an email.
There are exemptions that apply to administrative investigations; however, Gernhardt and Rhyne said there are no exemptions specific to OSHA or the like.
Rhyne added that even if such an exemption existed, records that were previously documented before an investigation would still be accessible.
"Just because there's been an incident doesn't mean those records stop becoming public. You don't get to just shoehorn everything into some sort of investigation exemption," Rhyne said.
She continued, "Anytime that I see such efforts being made to withhold records and using exemptions or procedures that aren't really supported by the law, that immediately creates the impression that they're trying to hide something."
Residents said providing information is the least the city could do.
"The public deserves answers," Barnes said.
CBS 6 sent its public records request to the city on September 18. The city has still not provided the records in question.
FOIA law allows the government up to five business days to provide a response. The government can invoke an extension, but in this case, the city has not invoked an extension.
Richmond's public relations chief Petula Burks is now handling CBS 6's request instead of the designated FOIA officer.
Burks has not responded to CBS 6's emails.
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