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Star-Exponent: The right to know might cost you dearly |
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http://www.starexponent.com/cse/news/opinion/op_ed/article/our_view_the_right_to_know_might_cost_you_dearly/34829/
OUR VIEW: The right to know might cost you dearly
STAFF EDITORIAL
Published: May 1, 2009
Last year, Leigh Purdum of Brightwood won a Freedom of Information Act lawsuit against her former employer, Madison County Sheriff Erik Weaver. Her suit was over Weaver’s failure to provide a list of members on his citizens advisory board, which he claimed she sought for political purposes.
While the board itself is not a public entity, any records of it maintained by the sheriff’s office are public documents, according to a General District Court ruling in which Weaver was ordered to turn over the names and pay a $250 fine.
Weaver provided the information, but appealed the fine on the grounds that he did not “willfully and knowingly” violate the law, as he was following his lawyer’s advice. Judge Jay Swett, presiding over Madison County Circuit Court, recently ruled in Weaver’s favor.
The end result: Weaver’s fine was overturned and Purdum has some pretty sizeable legal bills, solely because the sheriff appealed. She represented herself in the first suit but naturally hired an attorney for the appeal.
Leaving out the feud between Purdum and Weaver — which extends to other issues — what we have is a citizen incurring huge legal bills to enforce a right that is supposed to be guaranteed by law. The system, as it is now, discourages citizens from defending their right to public information.
This case also highlights a lack of FOIA knowledge that is not uncommon among government officials. Every year, the Associated Press does an audit by seeking information from selected governments. And every year, the AP reports on a few officials who refused to provide information.
For his part, we can understand Weaver wanting to clear his name and save $250, especially in this economy. However, it should be noted that Madison County taxpayers paid for his appeal.
Weaver appealed on principle last year, and we opposed it on principle. We still think it’s a shame that taxpayer money funded an elected official’s personal litigation, and it’s even more of a tragedy that Purdum is left to foot a big bill.
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No fines for Madison sheriff's FOIA violations |
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A district court said the sheriff's refusal to turn over names of a citizen advisory panel's members was willful and fined the sheriff -- the first known FOIA fines in the state. A circuit court in April 2009 said the violation was not willful, negating both the fines AND the attorneys' fees. Read about the district court win, and about the circuit court case and an open letter from the plaintiff in the case to the vice chair of the FOI Advisory Council. Culpeper Star-Exponent editorial.
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Open letter to FOIA Council vice chair Sen. Edd Houck |
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Culpeper Star-Exponent: http://www.starexponent.com/cse/news/opinion/columnists/article/an_open_letter_to_sen._edd_houck_regarding_the_states_foia_laws/34434
An open letter to Sen. Edd Houck regarding the state’s FOIA laws
BY LEIGH PURDUM | MADISON
Published: April 24, 2009
Dear Sen. Houck,
On Dec. 18, the General District Court found Madison County Sheriff Erik Weaver guilty of willfully and knowingly failing to adhere to the Freedom of Information Act. The sheriff appealed this decision, including awarding me my court costs. On April 20, the case was heard at the Circuit Court level.
I will try to summarize what has happened to me at the appellate level. Knowing of your interest in FOIA, you may recall that the issue revolved around my effort to obtain the names of the citizens the sheriff had appointed to a publicly advertised “Citizens Advisory Board.” I did not have an attorney and represented myself in lower court.
I felt I was unable to represent myself at the Circuit Court level and retained David Lacy, who is with the law firm of Christian & Barton, located in Richmond. There were numerous motions filed on behalf of Sheriff Weaver that I would have been ill-equipped to understand without the advice of counsel.
On the morning of the Circuit Court hearing, at the beginning of the trial the lawyer for the sheriff stipulated that they were in agreement that the names of the citizens the sheriff had appointed to the board should have been released and they were there to try only the portion of the sentence dealing with the “knowingly and willfully” finding handed down in lower court.
I had thought when an appeal from a lower court was made, it meant that the entire case was to be presented in its entirety.
Several points of evidence were presented to the court:
* Sheriff testified he was trying to protect the individuals from harassment during a hotly contested sheriff’s election.
* Sheriff met with county administrator, who had informed him to take the easy road out and release the names.
* Sheriff asked the members of the board if they wanted their names to be released and they all agreed they wanted the citizens of Madison to know who they were. (This evidence was contained in a minutes of a June 2007 meeting that was not produced to me upon my initial request for information and my follow-up letters that went well into July for the information.)
* Evidence was presented that in the July follow-up letter to my request the sheriff stated he had no other records reference to my request (the June 11 minutes of the meeting were, in fact, available).
* A FOIA Advisory Council opinion was released, dated Oct. 11. The sheriff alleged that he did not receive this opinion letter until a few days before the trial in General District Court.
* Sheriff consulted with an attorney a few days before the General District Court trial who told him that the FOIA Council opinion was ambiguous and if the court ordered him to release the names, he should release the names at the court hearing.
The circuit court ruled that the sheriff did not knowingly and willfully violate the FOI Act and further ruled that because I did not substantially prevail in the “knowingly and willfully” portion of the hearing — I was provided the names of the citizens at the lower court hearing — my interest in the case had been satisfied and any and all legal fees I expended after that court hearing were not permitted to be awarded.
The implications for the future of FOIA in Virginia are obvious and disturbing. I have to wonder how any citizen is able to prevail in the current judicial system, given the wording and interpretation of the FOI Act.
The interpretation of the law in this case tells a public body they may “knowingly and willfully” violate the FOI Act; that if ordered to produce the records at the lower Court, they may do so, satisfying the dictates of FOIA and no longer, according to this interpretation, being in willful and knowing violation of the law.
They may then appeal the decision. There is no clarity if the appeal is to be considered all-encompassing, requiring a citizen to defend his or her position. The case is apparently not considered in its entirety (original facts) but rather from the actions at the point of appeal.
No citizen will be able to afford to continue to represent the public interests unless there is a chance to recover attorneys’ fees and court costs. In short, citizen interests can be manipulated by any government entity willing to “tough it out” through a court case at the General District level.
A court reporter was present, and transcripts of the trial are available. I spoke with Craig Merritt of Christian & Barton, who worked with David Lacy on this case. He asked that I tell you to contact him directly if you had any questions about this case.
I can’t express enough how frustrated and disillusioned I am about the process a citizen is forced to endure to obtain basic information from public officials and “fight” for the public interests. I am hoping, since you are a champion of the FOI Act, you might find a way to enact corrective or clarifying legislation.
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No fines for FOIA violation after all |
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Culpeper Star-Exponent: http://www.starexponent.com/cse/news/local/article/madison_sheriff_wins_appeal_case/34223/
Madison sheriff wins appeal case
DON RICHESON, MEDIA GENERAL NEWS SERVICE
Published: April 22, 2009
The Freedom of Information Act required that Madison County Sheriff Erik Weaver give names of members of his citizens advisory board to a Brightwood woman who requested them. But because the sheriff’s failure to follow FOIA statutes wasn’t done “willfully and knowingly,” the woman – Leigh Purdum — didn’t prevail. That’s the gist of the ruling Monday by Judge Jay Swett in the sheriff’s appeal of a December 2007 lower court decision that he had willfully violated Virginia’s Freedom of Information Act.
“I find the evidence is insufficient to find a willful and knowing violation of Freedom of Information Act statutes and that (Purdum) has not substantially prevailed,” the retired Charlottesville Circuit Court judge said near the close of the four-hour-plus trial in Madison County Circuit Court.
According to his testimony at the trial, Sheriff Weaver had gone to four separate attorneys in 2007 trying to see how he could use a FOIA exemption to legally avoid releasing the names, which he said he did for the people on his citizens advisory board. “I was concerned for the people on the committee, it was a very heated election time,” he said of the period in summer 2007 when he was campaigning for the second term he later won.
He said two of the attorneys he had approached for help in 2007 – County Attorney V.R. Shackleford III and Commonwealth’s Attorney George Webb — declined to represent him. He also said that he had communications about not releasing the names with County Administrator Lisa Robertson, who is also an attorney.
Finally, Madison attorney Colt Puryear had agreed to give the sheriff legal advice, according to testimony by Weaver and Puryear.
Among other things, Puryear testified that information he had received in 2007 about the Freedom of Information Act was “convoluted” and “internally inconsistent” and so Puryear didn’t tell Weaver that he was required to release the names. Puryear instead said he had told Weaver that a judge should first rule on whether the names should be released.
“In the absence of any evidence that someone told the sheriff he must do ‘x’ and he did ‘y’ it is hard to assess a penalty (against him),” Judge Swett said in Monday’s appeal trial.
“I’m glad it’s over with,” Sheriff Weaver said following Monday’s trial. “Each court case has two different sides and I prevailed today.”
Purdum, who once worked as a public information officer for the sheriff, also commented. “To have the court rule completely against the citizen in this case is shocking to anybody who should be able to have access freely to information of the government,” she said.
Citizens advisory board members’ names released by Sheriff Weaver in December 2007 following a judge’s ruling include, Roger Aylor, Journey Beasley, Jerry Butler, Janice Carpenter, Charles Carter, Betty Cole, Jimmy Frye, Greg Garrett, Bill Heflin, Kay Hood, Max Lacy, Linda Taylor and Erik Weaver. According to trial testimony Monday, none of the members had specifically asked the sheriff not to release their names – it is something the sheriff had reportedly decided to do on his own.
Harrisonburg attorney Mark Obenshain represented Weaver in the case, while David Lacey, an associate of Richmond attorney Craig Merritt, represented Purdum.
Much of the testimony during the trial touched on the Freedom of Information Act requiring that any exemptions to the act be “narrowly construed” – that if a government official wasn’t sure an exemption applied, then a citizen’s records request should be honored.
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