Connell Amicus Brief
In The
Supreme Court of Virginia
___________________________
___________________________
James G. Connell, III
Appellant
v.
Andrew Kersey
Appellee
__________________________
Record No. 001729
___________________________
Brief of Amici Curiae, The Reporters Committee for Freedom of the Press and Virginia Coalition for Open Government, In Support of Appellant, James G. Connell, III
___________________________
S. Mark Goodman, Esq.
Counsel of Record for Amici Curiae (VSB No. 38369)
Of counsel:
Lucy Dalglish, Esq.
Gregg Leslie, Esq.
Ashley Gauthier, Esq.
The Reporters Committee for Freedom of the Press
1815 N. Fort Myer Drive
Suite 900
Arlington, VA 22209
(703) 807-2100
INTEREST OF AMICI CURIAE
The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association of reporters and editors that works to defend the First Amendment rights and freedom of information interests of the news media. The Reporters Committee has provided representation, guidance and research in First Amendment and Freedom of Information Act litigation since 1970.
The Virginia Coalition for Open Government is a non-partisan, non-profit organization devoted to enhancing the flow of information to citizens of the Commonwealth and beyond. Created in 1996, the Coalition has nearly 200 individual and institutional members, who share a commitment to preserve existing channels of access to public information, and to seek new means of providing access to the largest number of people at the lowest possible cost. The Coalition's Board of Directors includes representatives of local and state government, the print and broadcast media, library groups and the general public.
Amici's interest here is in preserving public access to government documents. Members of the press, as representatives of the public, have a strong interest in access to government records. Such access permits the public to learn how their tax dollars are spent, to benefit from information in government custody, and to hold government officials accountable for their work. There are also numerous public policy reasons, as discussed below, that support public access to the types of records at issue in this case. Amici therefore have an interest in ensuring that public access to government records is not unreasonably or improperly withheld.
INTRODUCTION
The trial court's ruling in this case causes grave concern because it concluded that "constitutional officers" are not covered by Virginia's Freedom of Information ("FOI") Act.(1) Amici assert that such public officials are covered by the FOI Act, and precedent from this Court supports this proposition. Further, the FOI Act was intended to be interpreted broadly, and the trial court should not have read an exemption into the Act that is wholly unsupported by the statutory language.
ARGUMENT
A. The Commonwealth's Attorney's office is a "public body" and is subject to the Virginia FOI Act.
The trial court in this case found that the Commonwealth's Attorney's office was not a "public body." Such a finding is contrary to prior rulings of this Court and to general principles of the FOI Act.
The trial court found that the Commonwealth's Attorney is not a "public body" because it is a constitutional office. The trial court also found that the Commonwealth's Attorney did not become a "public body" even though the attorney is paid with public funds.
It is true that the Commonwealth's Attorney is a constitutional officer. Other constitutional officers are the treasurer, sheriff, court clerk, and commissioner of revenue. Virginia Constitution Article VII § 4. Such status, however, does not remove them from the realm of "public bodies" as defined by the Virginia FOI Act.
A "public body" is:
any legislative body; any authority, board, bureau, commission, district or agency of the Commonwealth or any political subdivision of the Commonwealth, including cities, towns and counties; municipal councils, governing bodies or counties, school boards and planning commissions; boards of visitors of public institutions of higher education and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds.
Virginia Code § 2.1-341.
The Commonwealth's Attorney's office fits into the definition of public body as it is both an authority or agency of the Commonwealth (2) and it is supported wholly or principally by public funds.(3) There is no language in Virginia's FOI Act that specifically excludes the Commonwealth's Attorney or constitutional offices from the definition of "public bodies." On the contrary, the scope of the Act was intended to be broad. City of Danville v. Laird, 223 Va. 271, 276, 288 S.E.2d 429 (1982) (stating that the Act should be liberally construed, and the exemptions narrowly construed, in order to provide the greatest possible public access).
This Court has considered at least one other case involving constitutional officers and has found that the FOI Act applies to them as public bodies, even though an exemption applied to the document in question. In Tull v. Brown, 255 Va. 177, 494 S.E.2d 855 (1998), this Court considered whether a sheriff was a public official and whether a sheriff's 911 tape would be released in response to a FOI Act request. The sheriff initially argued that the sheriff's office was not a "public body." Tull, 494 S.E.2d at 857. He later argued that the 911 service was not "public business." Id. at 857-58. This Court rejected such arguments, finding that the sheriff was a public official and finding that the 911 system was a transaction of public business. Id. at 858.(4)
The Tull opinion indicated that constitutional officers are public bodies under the FOI Act. In fact, this Court specifically referred to the sheriff's status as a constitutional officer in holding that he was a public official:
Furthermore, Sheriff Brown is a public official, see Va. Const. art. VII, § 4, and acts in that capacity when managing the 911 system. Thus, we conclude that the 911 Tape is an official record under FOIA.
Id. (emphasis added); accord Hilton v. Amburgey, 198 Va. 727, 96 S.E.2d 151 (1957) (finding that a sheriff was a public officer because he was a constitutional officer); see also, Times-World Corp. v. Wells, 32 Va. Cir. 239 (1993) (finding that records maintained by a constitutional officer are "official records" under the FOI Act) (citing Associated Tax Service v. Fitzpatrick, 236 Va. 181, 372 S.E.2d 625 (1988)). Thus, it seems clear that constitutional offices are generally subject to the FOI Act.
B. There is no reason to create a special exception for the Commonwealth's Attorney.
The Virginia FOI Act was designed to cover all government offices and officials. The access provisions of the Act should be broadly construed and the exemptions should be narrowly construed. The policy behind the Act is to give the public as much information as possible about the government and how it works. Government officials are ultimately accountable to the public; it is the public's tax dollars that fund their work, and the work of government officials is essentially work for the public.
There is no reason why a special exception should be made for the Commonwealth's Attorney. All government officials should be accountable to the public for their actions. As one court noted:
Public scrutiny accompanies all public servants. There is nothing unique about prosecutors in this regard.
Massameno v. Statewide Grievance Committee, 663 A.2d 317, 335 (Conn. 1995). The FOI Act was designed to cover all public officials, and no special exception should be made for the Commonwealth's Attorney.
There are strong public policy reasons in allowing public access to documents held by constitutional officers. The public has a strong interest in knowing how the Commonwealth's Attorney's office operates; and the press, in its duty to inform the public, should not be barred from obtaining information about the Commonwealth's Attorney or any other constitutional officers. The Commonwealth's Attorney, in particular, holds a great deal of power in the state's criminal justice system, and the public has a strong interest in following how the Commonwealth's Attorney acts. As a prosecutor, the Commonwealth's Attorney has wide discretion in deciding who to prosecute and how to handle various alleged crimes. The Commonwealth's Attorney has broad discretion to decide whether to prosecute an alleged criminal, which cases to pursue, and how to "prove up" the state's case. The only way the public can evaluate how the prosecutor discharges his duties is to provide access to the documents underlying the prosecution. The public must be able to see the information from law enforcement officers that the prosecutor used to evaluate whether the prosecutor exercised good judgment. Otherwise, if the public were shut out from obtaining such information and the prosecutor were not accountable, the public may fear that a prosecutor could abuse his authority or act in an inappropriate manner, as the following examples illustrate.
For instance, there have been recent allegations in New Jersey that police officers use racial profiling in their law enforcement efforts, which has caused a public outrage. See "New Jersey Profiling is Focus of State Probe," Deseret News, p.A6 (Nov. 22, 2000) and "Access Aids Accountability," Imprint, p.3 (Nov. 2000), attached hereto at A-1 and A-3. The public has an interest in knowing how the prosecutor handles cases where it appears that the defendant was stopped merely because of his race. The public also has an interest in knowing whether and how the state prosecutes police officers who have allegedly acted improperly.
As the attached article from Deseret News describes, a judge dismissed charges against two police officers who were accused of racial profiling. The judge accused the prosecutors of misconduct and of bowing to political pressure. There is no way for the public to know whether the prosecutors acted properly or whether they indiscriminately pursued a case against those officers without access to government records.
A similar issue was raised by the Wen Ho Lee case. See "FBI Seeks Computer Tapes in Lee Case," The Washington Post, p. A14 (Nov. 29, 2000), attached hereto at A-4. As the article notes, Asian-American groups accused the FBI of racial profiling and claimed that Dr. Lee was charged with espionage only because he was of Taiwanese descent. The case became controversial and prosecutors eventually accepted a plea bargain.
The Wen Ho Lee case is of great importance because it involved alleged espionage of American nuclear secrets. The public interest in deterring spies is great. But the public must also feel confident that the FBI is catching the actual spies and not guessing who they might be based on ethnicity. The public must have an understanding of how the prosecutor's office works in order to feel confident that it is making the right choices.
The public's interest in how the Commonwealth's Attorney's office works is further illustrated by a recent case from Virginia. Last March, a 15-year-old girl was killed in a hit-and-run accident in Fairfax, Virginia. The driver of the car was Jane Wagner, a well-like lawyer who had once worked as a clerk at the courthouse. The father of the deceased girl was concerned that Wagner would be given favorable treatment because of her connections. See "Bitterness Nearly Rivals Grief," The Washington Post, p.B1 (Oct. 23, 2000), attached hereto at A-7. The father accused the prosecutor's office of delaying the trial and failing to thoroughly investigate the case. Id. Eventually, Wagner pleaded guilty to hit-and-run charges and was sentenced to a year in jail. See "Lawyer Pleads Guilty to Hit-Run," The Washington Post, p.B1 (Nov. 1, 2000), attached hereto at A-11. The sentence she received was more severe than the state guidelines recommended for hit-and-run cases. Id. However, the victim's father was still angry that Wagner had not been charged with manslaughter or vehicular homicide. Id.
The public will have to decide whether it believes that Wagner was properly brought to justice or whether she received favorable treatment. But in order to instill public confidence, a concerned citizen should be granted access to the police records in that case. If the records were kept secret, there would always be a suspicion that the police or the prosecutors were hiding something. Public policy favors access so that the public's questions, if any, can be answered.
There are other public policy reasons why the records of constitutional officers should be subject to Virginia's FOI Act. If constitutional officers were not covered by the FOI Act, then the public would have no right of access to basic financial records of the offices, showing how much it spent on office supplies or other expenses. Because there is always a danger that some unscrupulous employee might abuse government funds, the public would always have an interest in having access to the agency's financial records to ensure the money was spent properly.
Because the public has such a strong interest in knowing how the Commonwealth's Attorney's office operates, no special exception should be made for the Commonwealth's Attorney.
CONCLUSION
The trial court's finding that the Commonwealth's Attorney is not a "public body" under Virginia's FOI Act because it is a "constitutional office" was erroneous. Amici respectfully requests that this Court hold that "constitutional officers" are "public bodies" under the FOI Act.
Respectfully submitted,
_____________________
S. Mark Goodman, Esq.
Counsel of Record (VSB No. 38369)
Lucy Dalglish, Esq.
Gregg Leslie, Esq.
Ashley Gauthier, Esq.
The Reporters Committee for Freedom of the Press
1815 N. Fort Myer Drive
Suite 900
Arlington, VA 22209
(703) 807-2100
CERTIFICATE OF SERVICE
Counsel for amici curiae hereby certifies that three copies of the Brief of Amici Curiae, The Reporters Committee for Freedom of the Press and Virginia Coalition for Open Government, In Support of Appellant, James G. Connell, III was served via first class mail on this 11th day of December, 2000, upon:
Counsel for Appellant:
Michael F. Devine
10511 Judicial Drive
Suite 105
Fairfax, VA 22030
(703) 691-8410
Counsel for Appellee:
Jack L. Gould
10615 Judicial Drive
Suite 102
Fairfax, VA 22030
(703) 273-6007
_________________________
S. Mark Goodman, Esq.
Footnotes:
1. Virginia Code § 2.1-340 et seq.
2. The Commonwealth's Attorney is an attorney who prosecutes alleged crimes on behalf of the Commonwealth. It acts with the authority of the Commonwealth for the benefit of the Commonwealth.
3. See Virginia Code § 15.2-1638 (county government pays for Commonwealth's Attorneys space and facilities), § 15.2-1636.15 (public funds pay for Commonwealth's Attorneys equipment and supplies), §§ 15.2-1627.1, 1632, 1636.14, 1605 (public funds pay salaries and benefits of Commonwealth's Attorney and assistants), § 15.2-1628 (Commonwealth's Attorney must not engage in private practice of law and must be publicly funded).
4. However, the Court also found that the 911 tape was exempt from disclosure, even though it was a public record under the FOI Act.
Table of Authorities................................................ii
Interest of Amici Curiae ....................................1
Introduction.........................................................2
Argument.............................................................2
A. The Commonwealth's Attorney's office is a "public body" and, therefore, is subject to the Virginia FOI Act. ............2
B. There is no reason to create a special exception for the Commonwealth's Attorney. .............4
Conclusion.............................................8
Certificate of Service....................................9
Appendices
"New Jersey Profiling is Focus of State Probe," Deseret News, p.A6 (Nov. 22, 2000).............A-1
"Access Aids Accountability," Imprint, p.3 (Nov. 2000)..........................A-3
"FBI Seeks Computer Tapes in Lee Case," The Washington Post, p.A14 (Nov. 29, 2000) .............A-4
"Bitterness Nearly Rivals Grief," The Washington Post, p.B1 (Oct. 23, 2000) ..............................A-7
"Lawyer Pleads Guilty to Hit-Run," The Washington Post, p.B1 (Nov. 1, 2000) .............................A-11
Cases:
Associated Tax Service v. Fitzpatrick, 236 Va. 181, 372 S.E.2d 625 (1988) 4
City of Danville v. Laird, 223 Va. 271, 288 S.E.2d 429 (1982) 3
Hilton v. Amburgey, 198 Va. 727, 96 S.E.2d 151 (1957) 4
Massameno v. Statewide Grievance Committee, 663 A.2d 317 (Conn. 1995) 5
Times-World Corp. v. Wells, 32 Va. Cir. 239 (1993) 4
Tull v. Brown, 255 Va. 177, 494 S.E.2d 855 (1998) 3, 4
Statutes:
Virginia Code § 2.1-340 2
Virginia Code § 2.1-341 3
Virginia Code § 15.2-1605 3
Virginia Code§ 15.2-1627.1 3
Virginia Code§ 15.2-1628 3
Virginia Code § 15.2-1632 3
Virginia Code § 15.2-1636.14 3
Virginia Code § 15.2-1636.15 3
Virginia Code § 15.2-1638 3
Other Authorities:
Virginia Constitution Article VII § 4 2, 4
