The latter half of 2007 was good to Virginia citizens exercising their rights under the Freedom of Information Act, with the pro-access rulings of the Supreme Court and two circuit courts.
John Fenter asked for records authorizing signs around the Norfolk airport roadways that vehicles were subject to search. Within five days, as FOIA requires, the authority wrote to Fenter telling him that his request had been forwarded to the Transportation Security Administration for review and that the authority “would respond to [his] letter upon receipt of advice from that agency.” None of the records were released, no exemptions were cited and there was no indication the request would be filled within an additional seven days, as FOIA allows.
After two months, the FOI Advisory Council issued Fenter an opinion (AO-05-06) saying the authority had violated FOIA because it did not include one of FOIA’s prescribed responses to requests. Further, though FOIA allows the authority to ask for more time, the limit on that extra time, absent a court order, is seven working days.
By July, still with no response from the authority, Fenter filed a FOIA complaint in Norfolk Circuit Court. Judge John Morrison ruled against Fenter, saying the authority’s response complied with FOIA’s requirements and “the requirements of federal law.”
The Supreme Court, in a unanimous opinion by Senior Justice Roscoe Stephenson, reversed. Rejecting the authority’s argument that federal airport-security laws preempt FOIA’s response-time requirements, the court agreed that 9/11 makes airport security extremely serious, but absent any evidence that federal regulations “obviate the need to respond,” there is no preemption.
The court also approved the award of attorneys’ fees to Fenter’s counsel.
It was a slam dunk for Virginian-Pilot reporter Marc Davis in November when Chesapeake Circuit Judge Thomas Forehand Jr. ruled against the city of Chesapeake on all three of Davis’ claims.
First, the city wrongly withheld the names of individuals the city paid general liability claims to. The city cited the Government Data Collection and Dissemination Practices Act as justifying the denial (the Attorney General used a similar, though not identical, argument last April when he said the names of concealed-weapon permit holders were confidential).
Neither of the GDCDPA sections cited contained a FOIA exemption, and nor did any other provision of the act, Forehand wrote.
The court also ruled Davis’ FOIA request for the names of plaintiffs filing claims related to sewer backups should not have been withheld under §2.2-3705.1(9), and that the $178.53 the city charged Davis to create a summary of claims was improper because “the terms and conditions were not agreed between the parties prior to the City’s preparation of the spreadsheet summary.”
But perhaps the most surprising ruling of them all came from Madison County General District Court when Judge Robert Downer Jr. fined a public official for violating FOIA Section 2.2-3714 says FOIA violations can result in a fine of $250 to $1,000 for a first offense ($1,000 to $2,500 for a subsequent violation) to be paid into the State Literary Fund. Fines are based on a finding of “willful and knowing” violations.
It’s a strong provision, one that often garners Virginia high marks around the country as being tough on FOIA violations. In reality, judges regularly give officials and government entities the benefit of the doubt and determine that the violation was the result of mistake, misunderstanding, or honest misinterpretation of the law.
But Downer decided Sheriff Erik J. Weaver had crossed the line, fining him $250 and ordering him to release the names of his 13-member citizen advisory board. Weaver claimed he received extensive legal advice from an unidentified attorney that turned out to be incorrect.
Madison citizen Leigh Purdum sued Weaver when he wouldn’t reveal the names, based on advice he received from the unidentified attorney. Weaver denounced Purdum’s suit as being a personal attack from a former “disgruntled employee,” while Purdum admitted that Weaver “hates my guts.”
Before she sued Weaver, Purdum sought guidance on FOIA’s interpretation from Virginia Coalition for Open Government Executive Director Jennifer Perkins. Along with the issues decided by Downer, Perkins noted that the citizens council itself might not be a public body since, as the FOI Advisory Council has concluded, it was created by a constitutional officer, the sheriff.
A case out of the 4th U.S. Circuit Court of Appeals, a Richmond-based federal court, cast one of the year’s only long shadows.
Joseph Giarratano, a prisoner at Red Onion with Hepatitis C, wanted records from the prison detailing its policy on treating the disease. The warden denied Giarratano’s request, citing the part of FOIA that says the act cannot be used by prisoners except in extremely limited situations. Giarratano sued in federal court, saying the prohibition violated his Equal Protection and Due Process rights. He lost in both the trial court and on appeal.
“[I]nmates could abuse VFOIA and unduly burden state resources,” the court wrote. “Additionally, excluding prisoners could conserve state resources and prevent frivolous requests.”
— Megan Rhyne