Why a judge's decision exempting the judiciary from FOIA matters

This piece originally appeared in the Virginia Mercury, Oct. 31, 2018.

Why a judge's decision exempting the judiciary from FOIA matters
by Megan Rhyne

A judge in Richmond decided earlier this month that Virginia’s judiciary was not subject to the Freedom of Information Act.

The ruling was the culmination of a more than three-year tug-of-war between an Eastern Shore sculptor and the court system’s administrators.

Dr. William Turner has long believed that circuit court judges have been improperly using a $1,500 expense account allocated by the General Assembly to each judge. To learn more about the accounts, Turner filed dozens of FOIA requests with individual judges as well as with the Attorney General and the Office of the Executive Secretary, the statutorily created court administrator.

During a July 2017 hearing, where Turner appeared without a lawyer, there was disagreement over just how many of the records he requested he got, but the following month an Accomack County General District Judge ruled that the judges were not subject to FOIA and did not have to respond to Turner’s request.

But the judge also ruled that FOIA did apply to the Office of the Executive Secretary.

Meanwhile, Turner filed a FOIA request with the Virginia Information Technologies Agency, which administers telecommunications billing for the OES and other state agencies, asking for OES’ itemized long-distance phone records. OES responded that it was the legal custodian of the records and that VITA wasn’t allowed to release them.

VITA filed what’s called an interpleader, an action where one party (VITA) has property (records) and needs a judge to decide which competing party (Turner or OES) gets it.

Over the next 10 months, multiple briefs, petitions, answers and responses were filed by OES and VITA. Turner, however, still unrepresented by counsel, essentially faded from the scene.

He did not appear at the hearing that led to the court’s decision and did not file a brief on his own behalf. One judge heard arguments in the case, but then he recused himself. A Supreme Court justice designated retired Judge William N. Alexander II to continue the case.

On Oct. 15, Judge Alexander ruled that the phone records belonged to OES. The judge said FOIA didn’t apply to “the judiciary, including the executive secretary” under the plain meaning of the statute. He went on to say that the judiciary and the OES had sovereign immunity against FOIA suits, and that the separation of powers doctrine barred enforcement of FOIA against both, too.

Don’t look at the judge’s order for the legal analysis underlying these extraordinary holdings. The order simply says the conclusions were reached “for the reasons set forth in the Executive Secretary’s filings and oral arguments.”

So, if you missed the oral arguments, as did all but about a handful of Virginians, you won’t know what was said there. Luckily, VCOG has most of the briefs in the case on its website, but if we didn’t, it would take some effort for everyday citizens to get them from the courts.

Though the legal wranglings and machinations may sound like so much inside baseball, this ruling matters.

It matters because one judge sitting in Richmond has decided, with little explanation in a case where one party was acting without an attorney, that there is a constitutional prohibition against citizen use of FOIA to monitor the judicial branch of government.

Judges need the same zone of privacy that governors need to deliberate the cases and controversies that come before them.

But the judicial branch as a whole is still an arm of government. It is supported by taxpayer dollars, and it has the same operational expenses as other branches of government.

The courts employ people. They are government employees. How much are they paid? How much are they reimbursed for training trips or business lunches on a government credit card?

The courts buy products and services. How much did the courtroom sound system cost? What are the terms of the copier contract?

The courts have to maintain certain safety standards. What do the latest fire inspection, occupational safety or building inspections say?

The court administrators create and control court websites. Are these the best systems? Do they meet the access needs of citizens?

These are all records that would be available to citizens — individuals, the press, advocacy groups, politicians, government employees — if they asked for them from a state agency, local government, school district or regional authority.

Indeed, if a local clerk of court is asked for these types of records under FOIA, they would be required to respond.

The Supreme Court is currently seeking comment on a proposed set of rules to govern access to the judiciary’s records.

The proposal borrows heavily from FOIA’s procedures and includes an appeal mechanism, something lacking in FOIA. Some records deemed off-limits are similar to those referenced in some FOIA exemptions.

Many records that would be public under FOIA, though, would not be public under the proposal.

The court can implement these rules without any action from anyone else. The legislature, however, may choose to propose legislation to counteract Judge Alexander’s ruling, which could potentially pit one branch of government against the other.

FOIA isn’t the sexiest topic, and it’s often a headache and a hassle.

But what it represents is nothing short of the people’s ability to hold the government they have endowed with power (and money) accountable.

We must all be involved in any decision that alters that ability.