Bristol Herald Carrier wins fees in FOIA/911 tape case
Bristol Herald Carrier
July 15, 2007
Page 11A, 7-15-07
Officials skirt public records law; taxpayers get the bill
J. Todd Foster
Column
The city of Bristol Virginia has a long history of refusing to release public records to the news media. On many occasions, the city has violated the spirit of the state’s Freedom of Information Act (FOIA), and occasionally the letter of that law.
Two years ago, the Bristol Herald Courier pushed back.
Nearly 26 months of legal wrangling between the city and this newspaper ended last week with a victory for public access. But the big losers were not city officials but you taxpayers: The city’s obstinance in refusing to comply with the law and then its unwillingness to go along with a judge’s decision and make things right will cost you $32,504.45.
SINCE THE case is now over, we wanted to tell you what happened.
This all started with a 911 call made on April 15, 2005, by Andrea Petrosky. During that emergency call, the Bristol mother admitted choking and trying to drown her 6-year-old son, Garrett, in the bathtub. He died four days later.
The Bristol Herald Courier filed a FOIA request on April 22, 2005, seeking a copy of the 911 tape because this information was of vital public interest.
Police Chief Bill Price took our FOIA request to Assistant Commonwealth’s Attorney Zach-ary Lee to discuss it. Lee later testified that he conducted 10 to 15 minutes of legal research and found a Virginia Code section he felt justified withholding the tape from us.
ACCORDING TO the newspaper’s lawsuit, "The City’s evaluation of the Newspaper’s request was perfunctory and result-oriented."
Circuit Judge J. Robert Stump ruled that the city had violated the state’s open records law by withholding the tape.
Stump noted that the city failed to rely on its own attorney before denying the newspaper’s request.
The matter could have ended there, but Commonwealth’s Attorney Jerry Wolfe and then-City Manager Paul Spangler argued for an appeal to the Virginia Supreme Court.
"IN ITS FINAL oral ruling from the bench, the court gave the City a choice to amicably produce the 911 tape to petitioner and avoid possible attorney fees and costs," Stump wrote. "But the City refused to produce the 911 tape, and appealed to the Virginia Supreme Court."
Because the newspaper "substantially prevailed on the merits of the case," Stump ruled that we could seek attorney fees and costs incurred in an attempt to get the city to comply with state law.
The judge reduced our fees and costs by 25 percent and ended up awarding us $32,504.45.
The city appealed that, too, but the Supreme Court ruled last month there was no reversible error and refused to hear the city’s case.
THE NEWSPAPER’S victory undermines a routine objection used by prosecutors and police to withhold public records -- that the records have become part of an ongoing criminal investigation.
In this case, the argument by Commonwealth’s Attorney Jerry Wolfe was that Petrosky -- who eventually pleaded guilty as her capital-murder trial was to begin -- would not get a fair trial if a tape of her 911 call were released.
Under cross examination, Wolfe conceded that circuit judges have other effective remedies in place to fairly decide cases.
"I understand Mr. Wolfe’s concern, but ultimately it’s the taxpayers’ money," then-Mayor Doug Weberling told us for a story in April 2006.
"WE FEEL it’s more important to find a better use for the city’s money," Weberling said.
Even so, Wolfe and Spangler were able to persuade the City Council shortly thereafter to file an appeal.
Spangler left the city’s employment earlier this year, leaving behind a mound of bad decisions and debts that will require tax increases to pay off.
We firmly believe that new City Manager Bill Dennison, a longtime city employee, will be a better keeper of the taxpayer’s purse. We also think Dennison is the type of guy who will follow the state’s open records law.
J. Todd Foster is managing editor of the Bristol Herald Courier. He may be reached at (276) 645-2513 or jfoster@bristolnews.com.
July 15, 2007
Page 11A, 7-15-07
Officials skirt public records law; taxpayers get the bill
J. Todd Foster
Column
The city of Bristol Virginia has a long history of refusing to release public records to the news media. On many occasions, the city has violated the spirit of the state’s Freedom of Information Act (FOIA), and occasionally the letter of that law.
Two years ago, the Bristol Herald Courier pushed back.
Nearly 26 months of legal wrangling between the city and this newspaper ended last week with a victory for public access. But the big losers were not city officials but you taxpayers: The city’s obstinance in refusing to comply with the law and then its unwillingness to go along with a judge’s decision and make things right will cost you $32,504.45.
SINCE THE case is now over, we wanted to tell you what happened.
This all started with a 911 call made on April 15, 2005, by Andrea Petrosky. During that emergency call, the Bristol mother admitted choking and trying to drown her 6-year-old son, Garrett, in the bathtub. He died four days later.
The Bristol Herald Courier filed a FOIA request on April 22, 2005, seeking a copy of the 911 tape because this information was of vital public interest.
Police Chief Bill Price took our FOIA request to Assistant Commonwealth’s Attorney Zach-ary Lee to discuss it. Lee later testified that he conducted 10 to 15 minutes of legal research and found a Virginia Code section he felt justified withholding the tape from us.
ACCORDING TO the newspaper’s lawsuit, "The City’s evaluation of the Newspaper’s request was perfunctory and result-oriented."
Circuit Judge J. Robert Stump ruled that the city had violated the state’s open records law by withholding the tape.
Stump noted that the city failed to rely on its own attorney before denying the newspaper’s request.
The matter could have ended there, but Commonwealth’s Attorney Jerry Wolfe and then-City Manager Paul Spangler argued for an appeal to the Virginia Supreme Court.
"IN ITS FINAL oral ruling from the bench, the court gave the City a choice to amicably produce the 911 tape to petitioner and avoid possible attorney fees and costs," Stump wrote. "But the City refused to produce the 911 tape, and appealed to the Virginia Supreme Court."
Because the newspaper "substantially prevailed on the merits of the case," Stump ruled that we could seek attorney fees and costs incurred in an attempt to get the city to comply with state law.
The judge reduced our fees and costs by 25 percent and ended up awarding us $32,504.45.
The city appealed that, too, but the Supreme Court ruled last month there was no reversible error and refused to hear the city’s case.
THE NEWSPAPER’S victory undermines a routine objection used by prosecutors and police to withhold public records -- that the records have become part of an ongoing criminal investigation.
In this case, the argument by Commonwealth’s Attorney Jerry Wolfe was that Petrosky -- who eventually pleaded guilty as her capital-murder trial was to begin -- would not get a fair trial if a tape of her 911 call were released.
Under cross examination, Wolfe conceded that circuit judges have other effective remedies in place to fairly decide cases.
"I understand Mr. Wolfe’s concern, but ultimately it’s the taxpayers’ money," then-Mayor Doug Weberling told us for a story in April 2006.
"WE FEEL it’s more important to find a better use for the city’s money," Weberling said.
Even so, Wolfe and Spangler were able to persuade the City Council shortly thereafter to file an appeal.
Spangler left the city’s employment earlier this year, leaving behind a mound of bad decisions and debts that will require tax increases to pay off.
We firmly believe that new City Manager Bill Dennison, a longtime city employee, will be a better keeper of the taxpayer’s purse. We also think Dennison is the type of guy who will follow the state’s open records law.
J. Todd Foster is managing editor of the Bristol Herald Courier. He may be reached at (276) 645-2513 or jfoster@bristolnews.com.
