The Virginia FOIA Opinion Archive

The governor's itemized telephone bills are official records exempt from disclosure as memoranda, working papers or correspondence.

CIRCUIT COURT OF THE CITY OF RICHMOND

American Civil Liberties Union of Virginia, et al.

v.

Senator Hunter B. Andrews, et al.

Case No. HB-342-4

September 19, 1991

By Judge Randall G. Johnson

Reuber, a scientist, declared himself a whistleblower and created the misleading impression that a controversial pesticide was carcinogenic. A newsletter published his employer's reprimand, which stated that Reuber had engaged in unprofessional conduct. He sued for defamation and won in a jury trial which awarded him compensatory and punitive damages. On appeal, the Court reversed and remanded in favor of Food Chemical News. Reuber had made himself a public figure, and so the . . .actual malice’ standard should be applied. The jury could not have found actual malice here. The court held that the First Amendment protected the public's right to learn both sides of a controversy through the press and declined to uphold a damages award that left the debate one-sided. The court reversed the jury verdict that favored Reuber and remanded the case for entry of judgment in favor of the news group.

Relief for a plaintiff under FOIA does not include compelling a government body to turn over minutes, even if there are any, of an executive/closed meeting.

Documents generated in connection with the payment process of a settlement agreement, after the mutual agreement to settle, are open to public inspection.

The Virginia Freedom of Information Act (FOIA) does not apply to the State Corporation Commission.

The purpose or motivation behind a request made under FOIA is irrelevant to a citizen's entitlement to requested information.

FOIA and the statute that allows inspection of competitive sealed bids are separate and distinct.

A South Korean government agency issued a report that identified Lee, a U.S. resident alien, as a North Korean spy. Several newspapers and a television station reported the story. Lee sued the media groups for libel, and the trial court granted their motions for summary judgment. On appeal, the Court held that defendants were not entitled to the . . .official reports’ exception allowed under common law for those accused of republishing defamatory statements. That exception exists to promote government accountability, and this was a report from a foreign governments, so the rationale did not hold. Media groups have the same burden to verify reports from foreign governments as they do to verify reports from domestic non-official sources. The court reversed the summary judgment and remanded the case for Lee to prove falsity and negligence.

CIRCUIT COURT OF THE CITY OF RICHMOND

Students for Animals v. The Rector and Board of Visitors of The University of Virginia, and Animal Care Committee, etc.

Case No. N-6464-3

May 26, 1988

By Judge T. J. Markow

This is a petition under the Freedom of Information Act requesting that the court order that meetings of the Animal Research Committee of the University of Virginia be treated as public meetings under the Act.

Shenandoah Publishing House Inc. v. Fanning, 368 S.E.2d 253, 235 Va. 253 (4/22/1988)

Virginia Supreme Court

SHENANDOAH PUBLISHING HOUSE, INC.

v.

VIRGINIA K. FANNING, EXECUTRIX, ETC., ET AL.

Appeal from a judgment of the Circuit Court of the City of Winchester. Hon. Henry H. Whiting, judge presiding.

James L. Berry for appellant.

Phillip C. Stone (Ronald D. Hodges; Douglas G. Schneebeck; Wharton, Aldhizer & Weaver, on brief), for appellees Winchester, Memorial Hospital and H. George White, M.D.

A publisher intervened to challenge a Winchester Circuit Court decision which entered several protective orders in a wrongful death action. Among the records sealed were those concerning a compromise settlement between the estate of the deceased and the defendant corporations. The Court held that the trial court had struck the wrong balance between the interests of the parties involved and the interest of the public. A rebuttable presumption of public access to judicial records applies in civil proceedings. To overcome that presumption, the moving party must establish an interest so compelling that it could be protected reasonably only by a protective order. Any such order must be drafted in the manner least restrictive of the public's interest. The Court reversed the order that sealed judicial records in the case and remanded for a hearing on whether the records should remain sealed. The public had a societal interest in learning whether compromise settlements in a wrongful death action were equitable and whether the courts were acting properly. However, the Court affirmed the trial court’s decision to seal the pre-trial information collected during discovery. It was not a matter of public record, and the publisher had no right of access.

Morison was an analyst for the Naval Intelligence Support Center and a part-time employee of a British publication concerning military armaments. He obtained secret Naval satellite photographs of Soviet nuclear-powered vessels and sent the photographs to both the British publisher and the Washington Post, which published them. After the Navy discovered that Morison had stolen and disseminated the photographs, he was convicted for theft and for violating the Espionage Act. On appeal, defendant contended that that the statutes did not encompass his alleged improper conduct, and if they did, the statutes were unconstitutional. The court affirmed, holding that defendant's illegal conduct was encompassed by statutes' clear and unambiguous language. Further, because the First Amendment did not prohibit prosecutions for unauthorized leaks of damaging national security information, Morison’s convictions were not unconstitutional.

Falwell brought suit against Larry Flynt and his magazine for libel, invasion of privacy, and intentional infliction of emotional distress after Hustler published a parody of the preacher having a drunken rendezvous with his own mother. (1) The district court dismissed the claim for invasion of privacy because the use of plaintiff's name and likeness in the parody was not for purposes of trade within the meaning of the statute. (2) The jury found for defendants on the libel claim because no reasonable person would believe that the parody described actual facts about Falwell, and the parody contained a disclaimer. (3) The jury found against defendant magazine and publisher on the emotional distress claim, and Falwell was awarded actual and punitive damages. On appeal, the Court held that the . . .actual malice’ standard for public officials was met, because the jury found that Flynt’s intentional or reckless misconduct caused Falwell’s severe emotional distress. NOTE: The Supreme Court reversed this opinion in Hustler Magazine v. Falwell, 485 U.S. 46 (1988), Falwell was a public figure, the Court said, and so the "actual malice" standard was thus: Flynt must make a false statement of fact, knowing it to be false, or with reckless disregard for the truth. Here, because the trial below had found no one would believe the parody to represent actual facts, there was no actual malice.

In consolidated cases, several citizens sued newspapers for publishing defamatory articles about them. In each action, the trial court had applied a negligence standard, and the Court took the opportunity to clarify the standard of liability that should govern an award of compensatory damages to a private individual in a libel action. (1) A preponderance of the evidence must prove that the publication was false and that the defendant either knew it to be false, lacked reasonable grounds for believing it to be true, or acted negligently in failing to ascertain the facts. (2) The negligence standard applies only where the danger to the plaintiff's reputation is apparent from the defamatory statement. (3) The plaintiff can recover regardless of whether the publication in question related to a matter of public or general concern. (4) The negligence standard is applicable to both media and non-media defendants.

The procedure was not in opposition of the Freedom of Information Act, and the size of the land purchase did not invalidate the proposition.

Pre-arranged telephone conference call among members of a local school board, during which matters proper for an executive or closed session are discussed which are, is not a meeting under FOIA and does not violate the statutory requirement of prior notice to the public.

The burden is on the plaintiff to show that an action was taken in executive or closed session without reconvening in open session.

Closed Meetings; 2.1-344(b): When Only Two Items on Agenda are Legal Matters, Motion to Confer Privately With Counsel is Valid Under Code sec. 2.1-344(a)(6) Although Whether Both Items or Particular Item Will be Considered is Not Indicated

An executive session/closed meeting based on the legal matters exemption is not justified by an attorney's mere presence in the room

A motion to go into executive/closed session to discuss personnel issues need not identify the identity of the employee to be discussed.

In consolidated cases, several newspapers challenged trial court orders that closed to the public pretrial suppression hearings in three criminal prosecutions. The trial courts had overruled all objections by the newspapers. The Court reversed and vacated the trial court orders. It is unconstitutional to close pretrial hearings without an 'overriding interest articulated in findings,' and those findings should have been aired in a hearing on the merits. In addition, motions to close a hearing should be made in writing and filed with the trial court before the day of the hearing, and the public should be given reasonable notice.

A broker wanted to build a low-income residential development on land neighboring Moore, a U.Va. professor who opposed the development. The broker's application for rezoning was denied. Consequently, he published paid advertisements in The Cavalier Daily (U.Va.’s newspaper) saying Moore did "not want any black people within his sight." Moore brought a libel action alleging the advertisement injured his reputation in the university community. The Court reversed and remanded a trial court judgment for Moore. The advertisement was not defamatory per se, because the allegation of racism was not made in the context of the professor's employment as a teacher. In addition, the Court held that Moore was not a public figure as a professor or an outspoken resident. He would be entitled to recover compensatory damages upon proof of actual injury, including such elements as damage to his reputation and standing in the community, embarrassment, humiliation, and mental suffering.

The Va. Supreme Court upheld a Virginia law punishing anyone who divulged information about the proceedings of the Virginia Judicial Inquiry and Review Commission. The defendant newspaper, after identifying a judge whose conduct was being investigated by the Commission, was convicted and fined for violating the law. The Court said the law was constitutional because freedom of the press is not absolute and the Commission could not function without confidentiality. NOTE: The U.S. Supreme Court overturned this case in Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978), ruling that the publication served the interests of public scrutiny and discussion of governmental affairs that the First Amendment was adopted to protect. Neither the state's interest in protecting the reputation of its judges, nor its interest in maintaining the institutional integrity of its courts, was sufficient to justify the subsequent punishment of speech.

An injunction is not justified where there is not a reasonable probability that violations of FOIA will occur again.