FOIA in the courts

Two long-simmering FOIA cases came to an end since the last issue of NEWS.

In mid-January, Culpeper County agreed to pony up $93,000 in legal fees to the lawyers for Virginia’s press, who won a unanimous Virginia Supreme Court ruling against the county.

The county board of supervisors begrudgingly approved the payment on Jan. 16. Despite the resounding loss, and even though the $93,000 was less than the $128,000 the press paid out in fees and costs, at least one supervisor remained unapologetic. A Jan. 17 story on CulpeperTimes.com quoted Supervisor Sue Hansohn as saying “I really don’t want to make this motion, because I don’t think we were wrong. But I’m going to make this motion to pay the bill, because I don’t think we have any other choice.” Another supervisor said he was just trying to “save the taxpayers money.”

The press took the county to court over a closed meeting invoking the contract-negotiations exemption to FOIA. The county said it needed to meet behind closed doors to drum up alternative ideas for a contract between the local school board and an architect to build a new school. The press challenged that notion, and also said the notice for the meeting was inadequate under FOIA.

A circuit court judge agreed with the county that it could use the contract-negotiations exemption to close the meeting. The judge sided with the press on the notice issue, but then refused to award any attorneys’ fees because, according to the judge, Herman Whisenant, the press had not “substantially prevailed.”

A unanimous Supreme Court disagreed. In its Sept. 15, 2006, opinion, the state’s highest court said the meeting was improperly closed because the exemption was reserved for parties to an existing contract who needed to shield their negotiating strategy.

The court also reversed the ruling on fees, saying the press had substantially prevailed on the notice ruling.

Bristol’s 911 case

The two-year battle between Bristol and the Bristol Herald Courier finally ended this summer. The paper sued the city for release of a 911 tape of Andrea Petrosky, who admitted to choking and trying to drown her 6-year-old son, who died four days later. The city refused the paper’s April 22, 2005, FOIA request for the tape.

Circuit Judge J. Robert Stump ruled against the city and awarded the paper attorneys’ fees, yet the city still refused to turn the tape over. Instead, the city appealed to the Virginia Supreme Court. But the Supreme Court on June 28 refused to hear the case.

On July 15, the paper announced the final chapter in the story: the city would pay $32,504 in fees and costs for its impropriety.

The paper said its 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 paper noted, the prosecutor said it was worried release of the tape would jeopardize Petrosky’s fair trial; yet, at the trial, the prosecutor admitted that the judge hearing Petrosky’s case had other mechanisms at hand to ensure the trial’s fairness.

While the award of attorneys’ fees in both the Culpeper and the Bristol cases has been applauded, the sad fact is that these fees never would have accumulated had the government entities followed both the letter and the spirit of the FOI law in Virginia from the start.