Rivera v. Long (Norfolk Circuit Court) – Virginia Coalition for Open Government

Link to September 2006 ruling on costs of copies and attorneys’ fees.

Rivera v. Long
Norfolk Circuit Court
June 13, 2006

Judge Everett A. Martin Jr.

The plaintiff, a citizen of the Commonwealth, filed a request under the Freedom of Information Act (“FOIA”), Code of Virginia §2.2-3700 et seq., seeking to copy or inspect certain records of the General Registrar. The General Registrar provided some documents but refused two classes of documents: first, voter registration application forms with social security numbers redacted, and, second, correspondence she sent to those whose applications were rejected.

Code §2.2-3703(B) provides: “Public access to voter registration and elections records shall be governed by the provisions of Title 24.2 and this chapter. The provisions of Title 24.2 shall be controlling in the event of any conflict.”

Code §24.2-444, upon which the General Registrar relies in refusing to produce the two classes of records sought, provides, as pertinent:

Registration records open to public inspection — A. Except for records relating to the declinations to register to vote . . . registration records shall be kept and preserved by the general registrar and shall be opened to inspection by any registered voter at the office of the general registrar when the office is open for business. No voter registration record containing an individual’s social security number shall be made available for inspection or copying by anyone. No voter registration record containing an individual’s residence address shall be made available for inspection or copying by anyone if the individual has furnished a post office box address in lieu of his residence address as authorized by §24.2-418.

Rejected Voter Registration Application Forms

Voter registration application forms are required to contain the applicant’s social security number. Constitution of Virginia, Art. II, §2, Code §24.2-418; Defendant’s Exhibit 1. These records are official and they are “concerning the registration of qualified voters.” Code §24.2-101. By the express terms of Code §24.2-444 they are exempt from inspection and copying in their entirety. The plaintiff’s request for these documents is denied.

Correspondence from the General Registrar to Rejected Applicants

The General registrar has created five form letters she uses to inform applicants of the rejection of their applications. She testified these letters do not contain the applicant’s social security number. She refuses to provide these letters claiming they are “records relating to declinations to register to vote.” The plaintiff contends “declinations to register to vote” are, for example, acts by persons applying for drivers licenses who do not wish to register to vote. Congress mandated such an opportunity in the National Voter Registration Act of 1993. 42 U.S.C. §1973gg et seq.

The word “declination” is defined as “4. a polite refusal.” Webster’s Encyclopedic Unabridged Dictionary of the English Language (1989). The phrase “declination to register” appears in Code §§24.2-411.2(D)(2)(c) and 24.2-444. Although its meaning in the latter statute may be vague, in the former statute it clearly refers to a decision by an applicant not to register to vote; it does not refer to an act of the General Registrar. Furthermore, variations of the phrase “decline to register” appear in Code §§24.2-411.1(B) and 24.2-411.2(D)(2)(b) and (3) and also refer to an act by the applicant, not the General Registrar. All of these provisions were enacted by 1996 Acts of Assembly, cc. 72, 73 to implement the federal statute. See the chapter headings. They should be construed similarly.

By contrast, Code §24.2-114 provides that the General Registrar shall “If a person is denied registration, promptly notify such person in writing of the denial and the reason for the denial in accordance with §24.2-422.” The latter section provides “a person denied registration shall have the right to appeal . . . .”

That it appears a “declination” is an act by a potential applicant requesting that he not be registered to vote. “Decline” in common usage has a connotation of choice. An Act by a General Registrar refusing to register a person as a voter is a “denial.” Indeed, “denial” is the word used in each of the five form letters the General Registrar uses (Plaintiff’s Exhibit 2). If an applicant meets the constitutional and statutory qualifications to register to vote the General Registrar does not exercise a choice. She registers the applicant.

The General Registrar also claims that I must consider the effect of the issuance of the writ on the public and third parties. Richmond-Greyhound Lines v. Davis, 200 Va. 147, 151-2, 104 S.E. 2d 813, 816 (1958). In response the plaintiff relies on Cartwright v. Commonwealth Transportation Commissioner, 270 Va. 58, 613 S.E. 2d 449 (2005).

At common law the absence of another adequate legal remedy was a prerequisite for the issuance of a writ of mandamus. In Cartwright the plaintiff had a most simple alternative legal remedy: a motion to compel production of documents under Rules 4:9 and 4:12. The Commonwealth claimed the existence of this remedy barred the plaintiff from obtaining a writ. The Supreme Court disagreed:

The provisions of Code §2.2-3713 significantly distinguish the right to mandamus it provides from the common law right of mandamus. By granting concurrent jurisdiction to the circuit and general district courts, expediting the proceedings, providing for an award of costs and attorneys’ fees, and shifting the burden of proof to the public body, the General Assembly has evinced an intent to provide mandamus relief under Code §232.3713(A) different from that of common law mandamus. These distinctions are entirely consistent with the express purpose of the FOIA and manifestly facilitate access to appropriate governmental records. Contrary to VDOT’s contention, we are of opinion that the lack of any reference in this statute to the common law requirement that the petition prove a lack of adequate remedy at law evinces the intent of the General Assembly to eliminate that common law prerequisite to the issuance of a writ of mandamus. Such is clearly consistent with the salutary statutory scheme of the FOIA.

270 Va. at 66, 613 S.E. 2d at 453.

In light of the stated purpose of the FOIA, Code §2.2-3700(B), and the numerous exclusions to its application the General Assembly has enacted to protect privacy, see Code §§2.2-3705.1 through 2.2-3705.7, I believe the General Registrar’s proper concern about the disclosure of personal information of rejected applicants must be addressed by the General Assembly, not the courts. The enumeration of so many exclusions in the FOIA and the absence of any provision explicitly authorizing the courts to consider the privacy concerns of third persons convince me that this common law consideration has no place in the issuance of the statutory writ.

I thus conclude that the correspondence from the General Registrar to rejected applicants is subject to examination and copying under the FOIA; provided, however, letters to persons covered by the last sentence of Code §24.2-444(A) are exempt.

You should schedule a hearing with Mrs. Spivey (xxx-xxxx) so I may determine whether the plaintiff has substantially prevailed, the attorneys’ fees, if any, to which he is entitled, the costs he shall pay to the General Registrar to make the correspondence available, and such other matters you believe need resolution.

Sincerely yours,
s/Everett A. Martin, Jr.
Judge