Virginia Courts Offer Some FOIA Support

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Four recent rulings remind government entities that FOIA must be respected

The courtroom hasn’t always been a happy place for the Freedom of Information Act. The Virginia Supreme Court has, more often than not, sided with the interests of the government. While circuit and district courts have been a decidely mixed bag, the mix has tended to tilt in the government’s favor, not the public’s.

Not so this spring and summer. In four cases – even one from the Supreme Court – citizens of the Commonwealth have succeeded in convincing judges they weren’t just dreaming up FOIA violations in their head.

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Craig Merritt (right) advises (from left) Dick Hammerstrom of the Fredericksburg Free Lance-Star, one of the complainants in the lawsuit against the Culpeper County Board of Supervisors, Ginger Stanley, executive director of the Virginia Press Association, and David Cole, immediate past president of VPA. VPA was also a party to the suit. photo by Kristen Conway of The Culpeper Citizen

Perhaps no case best exemplifies the triumph of citizen advocates than the one that came from the Nelson County courtroom of Judge Michael Gamble in the tiny town of Lovingston. There, Gamble agreed with Montebello citizen Lee Albright that the Virginia Department of Game and Inland Fisheries had charged him too much for copies of department expense reports.

Albright’s journey began in 2003 when, curious about why the local fish hatchery – a prominent tourist attraction in the county – closed down, he asked VDGIF for budget records. The department didn’t turn over the records until shamed into it by a Freedom of Information Advisory Council opinion.

Those records raised more questions for Albright, who filed another request for expense reports of those involved in special law assistance patrol teams (SLAP teams), which do things like set up surveillance and stings of suspected poachers.

There was another struggle, but Albright eventually got the records, 141 of which were heavily redacted, and the department presented Albright with a $3,122.13 bill. In the bill’s breakdown of charges, the department included the time at least four department officials — including Director William Woodfin Jr. — spent redacting the records. The department also charged Albright for the time it took one official to drive from Wytheville to Richmond, plus his meals and lodging costs, to review the records.

Albright had already paid a $3,000 deposit, but he still thought the amount charged was too much, so he sued the department for reimbursement.

At the May 19 trial, the department’s attorney, John Byrum from the Office of the Attorney General, argued that the cost was justified, as FOIA allows for public entities to charge the actual cost of providing the records. The department was allowed to recoup the costs expended in retrieving the records from off-site facilities, as well as for compiling, reviewing, copying, redacting and recopying them, he said.

He also argued that some of the information in the documents needed to be redacted under §2.2-3706(G)(2) because it related to plans or resources used in undercover operations.

The department advanced an argument similar to the federal government’s “mosaic theory” regarding release of information on individuals detained after 9/11: any one piece of information might be harmless, but when connected with other pieces of information, it could reveal the secret behind the department’s secret operations, thereby ruining stings and traps to catch miscreants.

In response, Albright’s attorney, Sam Eggleston III of Lovingston, argued that the time spent reviewing the records was excessive (the Whytheville official could have done all of his work via FedEx, for instance). Also, Eggleston argued that the SLAP teams weren’t undercover, as team members’ names are not secret.

Gamble largely agreed with Albright. First, he agreed that the department should not have charged for the Wytheville official’s travel and lodging. Beyond that, though, Gamble also said that FOIA did not authorize “any reimbursement for the cost of reviewing or redacting the records.”

Then, parsing each and every redacted record given to Albright, Gamble determined that only 38 of the 141 records were properly redacted as being related to plans or resources dedicated to undercover operations, such as lodging or meals during an operation, or for equipment being specifically used for undercover operations.

The remaining 103 records were not properly redacted, Gamble said. While the records identified equipment and supplies that could be used in an undercover operation, it did not appear that they were “dedicated” to an undercover operation.

Gamble ordered the department to reimburse Albright $988.63. Plus, the department was ordered to pay Eggleston’s fees.

Accomack County split

An Accomack County judge awarded attorneys’ fees for a citizen-requester’s attorney in a June 2 ruling against the Virginia Board of Dentistry. Judge Glen A. Tyler ruled that Jon C. Poulson of Accomac was entitled to the fees he incurred representing William H. Turner during a struggle to get decent minutes from the board’s Feb. 21, 2002, meeting.

The board gave Turner the minutes when he requested them, but Turner insisted that they were inadequate. Specifically irksome to Turner was an entry under the heading “Fee Increases” stating, “The Board also discussed proposals to change the provisions for renewal and reinstatement fees . . . .” The result of this discussion was to delete the word “penalty” from the fee regulations, but there was no mention of why this was done.

Tyler agreed. Noting that six hours of discussion were distilled into only five typewritten pages, Tyler cited §2.2-3707, which requires all minutes of public meetings, to include a summary of the discussion on matters proposed, deliberated or debated. Tyler faulted the board for not including a summary of the discussion on the “penalty” fee subject.

Tyler ruled the FOIA violation was not willful, however. The judge further declined to issue injunctions against the board to make it record and preserve contemporaneous notes and recordings of its open meetings; to not withhold any future meeting minutes; and not to refer FOIA requests to the board’s legal counsel.

Culpeper wins and losses

The Turner case wasn’t the only case that could be seen as a glass half-full. In a May 5 ruling, visiting judge Herman A. Whisenant Jr. in Culpeper ruled that the Culpeper Board of Supervisors improperly certified a closed meeting in October 2004. On the other hand, the judge also said the subject of the closed meeting was justified under FOIA.

As explained by Frank Bossio, Culpeper’s county administrator who testified at the one-day trial for several hours, the board of supervisors was growing increasingly uncomfortable with the way the local school board was proceeding with its plans to build a new school. A contract had been signed, and amendments had been offered, but Bossio said he felt the school board was giving short shrift to other options.

Bossio said he believed that one of the architects at the consulting firm hired by the school board did not feel free to discuss other options with the school board. Bossio talked to County Attorney John David Maddox about having a closed meeting to discuss the existing, amended contract with the architect present.

(Ironically, the board of supervisors didn’t like being shut out of the process, since it would have to pay for the school, yet, it was the public, who ultimately pays for the school, who wasn’t privy to any of the proposed options.)

Maddox prepared the agenda for the meeting where the contract would be discussed, as well as the motions to go into closed sessions. These motions said the board would be going into closed session to discuss contracts, as was permitted by two FOIA exemptions: the one for legal consultation, and the one for discussion of the award of a public contract, including the terms or scope of the contract, where discussion in open session would adversely affect the bargaining position or negotiating strategy of the public body.

The Culpeper Star-Exponent , the Culpeper Citizen and the Fredericksburg Free Lance-Star , sued the board of supervisors. Through their attorneys Craig T. Merritt and Roman Lifson, the papers argued the notice for the closed session agendas were too vague because they did not even identify which contracts were being discussed.

Whisenant agreed that the notices were too vague. But, despite evidence that earlier notices on similar subject matters also followed this imprecise template, Whisenant said it was an inadvertent mistake and said he was sure Maddox would not make a similar mistake in the future.

The papers also argued that a closed meeting on the contracts was improper anyway because the board of supervisors wasn’t currently a party to the contract it was discussing in closed session. Whisenant disagreed.

Though Whisenant ruled that the exemption for legal consultation did not apply — the presence of the architect in the meeting destroyed any attorney-client privilege — he agreed with the county, and the county’s attorney Roger Wiley, that the contract negotiation exemption applied because the board of supervisors was discussing the scope of the school board’s contract with the thought that it might offer amendments to that contract.

On Aug. 2, Judge Whisenant denied the papers’ request for attorneys’ fees, a request they made based on the argument that their victory on the defective notice issue meant that they had “substantially prevailed.”

No decision on whether either decision will be appealed had been made by press time.

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Roger Wiley, representing the Culpeper County Board of Supervisors, makes a point to Judge Whisenant. photo by Kristen Conway of The Culpeper Citizen

High court victory

The first FOIA-related suit to come from the state’s high court in two years resulted in a victory for a Chesapeake man who was denied real estate appraisal information being used by VDOT in its plans to widen U.S. 17 in Chesapeake.

VDOT condemned Raymond Cartwright’s family farm for the road project. During the course of the litigation over the condemnation, Cartwright asked VDOT for a sales brochure it had prepared listing appraised values of other area land parcels. VDOT refused to turn over the brochure, citing the work-product privilege under the procedural rules for civil litigation.

Cartwright then filed a FOIA request for the same records. VDOT denied the request as being exempt as work product compiled during litigation. Cartwright sued, saying VDOT’s denial was a violation of FOIA.

Cartwright was represented by Henry E. Howell III and Jeremy P. Hopkins. VDOT was represented by Senior Assistant Attorneys General Richard L. Walton Jr. and Todd E. LePage.

As provided for in §2.2-3713, Cartwright asked the Chesapeake Circuit Court to issue a writ of mandamus ordering VDOT to turn over the records. Judge E. Preston Grissom ruled for VDOT, saying that a court can only issue a writ of mandamus if the person asking for one has no other adequate remedy at law.

In Grissom’s opinion, Cartwright had an adequate remedy at law within the litigation context: he could file a motion to compel VDOT to turn over the document in discovery. If the court granted his motion, he’d get the documents; if the court denied his motion, he could appeal it.

The Supreme Court reversed. FOIA is different, the court said in an opinion authored by Judge Lawrence Koontz. It is the only statute that allows a mandamus action to be brought in either district or circuit court, and, because it shifts the burden of proof to the public body to prove why mandamus is not appropriate, it is clear that the standard common law underpinnings of mandamus procedure did not apply.

The court said, “ a citizen alleging a violation of the rights and privileges afforded by the FOIA and seeking relief by mandamus pursuant to Code § 2.2-3713(A) is not required to prove a lack of an adequate remedy at law, nor can the mandamus proceeding be barred on the ground that there may be some other remedy at law available.”

Another important point made by the court was this: just because VDOT had given Cartwright the sales brochure during the course of the FOIA litigation did not mean that the case was moot, leaving Cartwright without a case. If the court ruled for Cartwright on the mandamus issue (which it did), it would mean the case would go back to the circuit court for reconsideration in the merits, that is, whether VDOT improperly withheld the sales brochure under FOIA. A victory on that point would entitle Cartwright to attorneys’ fees, and VDOT could be subject to fines.

The ruling means that procedural violations of FOIA cannot be avoided simply by providing the records. The same issue is being raised in another case pending between Albright and VDGIF. Albright has said other documents he requested were wrongly redacted; the department says an injunction compelling further disclosure is unnecessary since Albright got the same, unredacted documents through another source. The department called Albright’s suit a “tempest in a teapot.”