The Virginia FOIA Opinion Archive

Present: All the Justices

YVONNE G. SMITH

v.

RICHMOND NEWSPAPERS, INC., ET AL.

Record No. 000337

January 12, 2001

FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.

In this appeal, we consider whether audio tape recordings of a felony criminal trial are open to inspection by the public under Code § 17.1-208 and, if so, whether mandamus is the proper remedy to compel the clerk of the trial court to allow such inspection.

BACKGROUND

A man convicted of sexually abusing his step-granddaughter objected when the public and press were removed from the courtroom while she testified. On direct appeal, his lawyer failed to make a 6th Amendment claim to a public trial. The state courts summarily rejected petitioner's state habeas claim that failure to pursue the Sixth Amendment violation on appeal constituted ineffective assistance of counsel. The federal district court likewise rejected the claim and petitioner appealed. The court affirmed, finding that the underlying circumstances of the case sufficiently indicated an overriding, compelling interest in protecting a child victim from the embarrassment and trauma, that the closure was narrowly tailored to protect the compelling interest, and that the state court did not unreasonably reject petitioner's Sixth Amendment claims on the basis of an improper denial of a public trial.

No 1st Amendment right of access to government-held information.

Commonwealth Attorney not a public body under FOIA. Criminal incident information need only be summarized; the actual records need not be disclosed.

The Bedford County Circuit Court granted writs of mandamus to two newspapers, ordering that transcripts from several criminal hearings be made public. Two of the hearings involved juveniles and two involved adults accused of sexual crimes, in which numerous juvenile witnesses were required to testify. The Court reversed those writs of mandamus. The newspapers should have pursued their proper legal remedy, which was to intervene in order to have their objections heard.

Document given to city attorney by city manager is protected from mandatory disclosure as attorney-client privilege because it was prepared as part of an active administrative investigation in which legal advice was needed.

Not an FOIA violation when a public official chooses to exercise an exemption, redacted exempt information, but failed to timely cite the applicable Code section for the exemption.

Defendant reporters got jobs with Food Lion through misrepresentation and made a videotape, which was aired on ABC, of the store’s unwholesome food handling practices. (1) The court held that, since the reporters were at-will employees for an indefinite period, there was no reliance on their misrepresentations that would support a fraud claim. (2) However, since the reporters intended to act against the interests of plaintiff, they were liable in tort for employee disloyalty. (3) Their disloyalty rose to trespass, because it went beyond the consent Food Lion granted them to enter the store’s premises. (4) The final two charges could not be shown. ABC and its reporters were not guilty of unfair trade practices, since they did not harm the consuming public. (5) Food Lion could not claim damages to its reputation resulting from the broadcast since it did not allege actual malice on the part of the defendants.

The Virginia Constitution requires that votes taken on all municipal ordinances must reflect how each member present voted.

Yeagle, a college employee, filed a complaint against Virginia Tech’s Collegiate Times, alleging defamation after the phrase . . .director of butt licking’ appeared under her name in an article. Her suit was dismissed, and the Court upheld that dismissal. As a matter of law, the phrase could not convey a defamatory meaning. It contained no factual information, but was instead a . . .disgusting’ bit of rhetorical hyperbole.

Ringgold, a police official, restricted a reporter's access to police department information, after she aired a story about possible department corruption, by only communicating with her in writing and prohibiting her from any exclusive interviews with department personnel. The reporter brought a §1983 action, claiming that the restrictions violated her 1st 14th Amendment rights. After the reporter's summary judgment motion on liability was granted, Ringgold asserted the defense of qualified immunity in a summary judgment motion, which was denied by the district court. On appeal, the Court reversed the decision, holding that the rights involved were not sufficiently clear to deny Ringgold qualified immunity. Acting reasonably, Ringgold might not have understood that the reporter's rights would be violated by the restrictions placed on her. NOTE: This is an unpublished opinion, meaning it cannot be relied on as precedent.

Tapes used to record 911 calls are public records, but they are exempt as noncriminal incident information.

Materials that would nonetheless be official records standing alone may become exempt correspondence if they are transmitted to a qualified office as a letter.

FOIA does not require the production of trade secrets or proprietary information.

An injunction is proper where a school board enters into any contract, which was discussed during a closed executive session conducted pursuant to the Virginia Freedom of Information Act and whose effective date is before the date on which the school board reconvenes in open session and formally approves the contract.

A valid subpoena duces tecum is not a matter covered by FOIA.

High school student election results are not official records subject to disclosure under FOIA.

An action taken in open session of a meeting is valid.

Decided City Council did not violate FOIA by meeting in closed session; Shenandoah Publishing House Inc. v. The Winchester City Council; Chancery No. 95-156.

A city ordinance passed when all members of a public body vote in open session is valid.

Letters exchanged between an institution of higher learning and a law firm representing a university student are not exempt as work product compiled for use specifically for litigation.

FOIA and the discovery rules of the Supreme Court are mutually exclusive. Under FOIA, citizens are entitled to criminal incident reports that describe the criminal act.

A corporation to which the Virginia Retirement System appoints two board of trustee members is not a public body under FOIA. A willful and knowing violation of FOIA warrants the imposition of a civil penalty.

Times-World Corp. v. Wells

CIRCUIT COURT OF BEDFORD COUNTY, VIRGINIA

32 Va. Cir. 239

November 16, 1993

OPINIONBY: JUDGE MOSBY G. PERROW III

FOIA violations made in good faith do not require the imposition of civil penalties