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Circuit Court of the City of Richmond Virginia
Janice L. Redinger
v.
John T. Casteen, III
Case No. LX-2908-1
January 18, 1995
By Judge Melvin R. Hughes, Jr.
This is an action brought by a Virginia citizen seeking mandamus
against the President of the University of Virginia (the
University) pursuant to the Va. Code section 2.1-346 under the
Virginia Freedom of Information Act, section 2.1-340, et. seq. (The
Act of FOIA). Disclosure is sought of certain documents relating to
a settlement of certain student disciplinary charges involving a
law firm representing the student involved (Leggett) and the
University. Specifically, the documents listed for disclosure in
the Petition are:
All correspondence between Williams & Connolly and you
and/or between Williams & Connolly and James J. Mingle (General
Counsel for respondent and the University) or any other UVA
official in connection with the Leggett-Honor Committee matter.
All statements or bills for services rendered by Williams &
Connolly received by UVA, you, Mingle, or any other UVA official in
connection with the Leggett-Honor Committee matter.
The University has resisted disclosure on the grounds that the
requested documents are exempt as "work product" under the Act,
that a disclosure would violate federal and state law relating to
confidentiality of student records, and that billing statements are
available to plaintiff but, through no fault of the University's,
some of them were redacted when received by the University.1
To decide the issues the Court needs to set out the background.
These underlying facts are derived from the pleading and from other
materials including newspaper articles provided by petitioner
without objection the day the matter was argued. That day the case
was taken under advisement to allow the University to file a
responsive brief. 2
In the spring of 1993, Christopher Leggett, a former student,
was requested to leave the University after the student Honor
Committee found after a hearing that he had violated the
University's Honor Code. The proceedings stemmed from an accusation
of cheating on a computer science test in 1992. After a series of
unsuccessful appeals and after a request for rehearing was denied,
in June 1994, Williams & Connolly, a Washington, D.C. law firm
representing Leggett, wrote a letter to the University threatening
suit on the grounds that several procedural and constitutional
violations had occurred in Leggett's case. Within two months
thereafter, amid accusations of improper pressures by the
University administration on the student run Honor Committee,
Leggett won a retrial and was exonerated. Thereafter, the
University confirmed that it had entered into a settlement with
Leggett whereby he would be granted a retrial and the University
would pay about $40,000 in legal fees due from Leggett to Williams
& Connolly for his defense. There was much controversy
surrounding whether the entire Honor Committee consented to the
retrial, whether the Honor Committee, a purportedly independent
student committee, was bound by the settlement agreement to allow
the retrial and whether the grant of the retrial by the Honor
Committee instead of an appeals panel was procedurally correct. In
the wake of the outcome one Honor Committee member resigned and
others of the committee spoke out against the retrial. In an Open
Letter To The University published in the University Journal on
September 5, 1994, the respondent, John T. Casteen, III, President
of the University of Virginia, observed that Leggett had not
received a fair trial originally and that there was a real prospect
of the University having to pay money damages to Leggett if the
threatened lawsuit was filed.
The Court has reviewed the materials provided by the University
as the ones petitioner is seeking. They consist of copies of
correspondence back and forth between Williams & Connolly and
University officials including letters to and from James J. Mingle,
counsel for the University, and a draft complaint to be filed in
the United States District Court for the Eastern District of
Virginia. The correspondence names students involved in the case as
well as faculty and committee members, advisors and counsel. They
also consist of copies of Williams & Connolly expense
statements and copies of legal fees statements listing the dates
and hours devoted to the work. The word "redacted" is stamped on
each page of most of the billings below where the word
"explanation" appears. In other words the billings statements tell
what the hours for the billings are, but do not provide any detail
of the legal work done during the times indicated. After
consideration, the Court has decided to allow disclosure of some of
the documents but not all of them.
The policy underlying the Act is set out in section
2.1-340.1:
By enacting this chapter the General Assembly ensures the people
of this Commonwealth ready access to records in the custody of
public officials . . . . The affairs of government are not intended
to be conducted in an atmosphere of secrecy since at all times the
public is to be the beneficiary of any action taken at any level of
government.
With regard to the way the FOIA disclosure provisions and the
exemptions are to be construed the General Assembly has further
provided in section 2.1-340.1:
. . . This chapter shall be liberally construed to promote an
increased awareness by all persons of governmental activities and
afford every opportunity to citizens to witness the operations of
government. Any exception or exemption from applicability shall be
normally construed in order that no thing which should be public
may be hidden from any person.
In Taylor v. Worrell Enterprises, 242 Va. 219, 224 (1991), the
Court articulated these considerations in applying exemptions under
the purposes of the Act:
The General Assembly's implementation of an open government
policy is realized by the Act itself. The General Assembly sought
to ensure public access to governmental records and meetings, to
avoid an "atmosphere of secrecy" in the conduct of government
affairs, and to encourage resolution of disputes in these areas
through agreement rather than litigation. section 2.1-340.1 The
General Assembly does not consider the policy absolute, however,
and currently has identified 44 instances in which certain
information is exempt from mandatory disclosure. Taken together,
these exemptions reflect the General Assembly's determination that
the policy of openness does not override the need for
confidentiality in every circumstance, that the best interests of
the Commonwealth may require that certain governmental records and
activities not be subject to compelled disclosure.
Under the Act, Va. Code section 2.1-342(B) (6) exempts from
mandatory disclosure "memoranda, working papers and records
compiled specifically for use in litigation . . . and material
furnished in confidence with respect thereto." 3 The University cites four additional bases
to prevent disclosure. First, the materials requested include
material developed in the investigatory phases of anticipated
litigation. Second, since the materials identify University
students, they are exempt under Federal law and section 2.1-342 (B)
(3) because they are "scholastic records . . . containing
information concerning identifiable individuals." Third, because
the correspondence includes that of University counsel, James J.
Mingle, who is a special assistant attorney general, those letters
are exempt under section 2.1-342 (B) (4) as "[m]emoranda, working
papers and correspondence . . . held by or requested by the office
of . . . Attorney General." The Court finds that some of the
exemptions apply here and others do not.
Regarding the "for use in litigation" exemption. As to the
letters
section 2.1-342(B) (6) protects materials that are "[m]emoranda,
working papers and records complied specifically for use in
litigation." This cannot be said to apply to the correspondence the
court has seen between the University officials and Williams &
Connolly. These are letters back and forth between the two about
the case. They in no way are "memoranda, wondering papers . . . for
use in litigation" things that might be kept by one side of a
controversy from the other. A mere reading of the statute according
to its plain meaning is enough to reach the conclusion that letters
between William & Connolly and University administration
officials do not fit within any meaning of "memoranda, working
papers and records and material furnished in confidence thereto."
In addition, the whole of section 2.1-324 (B) (6) provides that
such "[m]emoranda, working papers and records compiled for use in
litigation or as a part of an active administrative investigation
concerning a matter which is properly the subject of an executive
or closed meting under section 2.1-344 and material furnished in
confidence with respect thereto." (Emphasis added). There is no
showing that any of this material concerns an executive or closed
meeting.
The billing statements, most if not all of which I understand
have been given to the petitioner, do not fit under this exemption
either because they are not prepared "for use in litigation."
Lemond v. McElroy, 239 Va. 515 , 521 (1990).
Regarding the "scholastic records" exemption. The correspondence
does name other students. Considering that there is some discussion
of these other students in the administration of the examination
that Leggett was alleged to have cheated on, names of those other
named students should be taken out because the references go to
reporting about their involvement in the complained of test, part
of their course taking involvement at the University.
For these reasons, it is not necessary to reach the federal law
Buckley Amendment objection raised by the University. Under the
Buckley Amendment or the Family Educational Right and Privacy Act,
20 U.S.C. 1232 no educational institution receiving federal funds
can disclose the educational records of students without their
written consent. The law conditions federal funding on maintaining
the privacy of educational records other than directory
information. "Directory information means:
[T]he student's name, address, telephone listing, date and place
of birth, major field of study, participation in officially
recognized activities and sports, weight and height of members of
athletic teams, dates of attendance, degrees and awards received,
and the most recent previous educational agency or institution
attended by the student.
20 U.S.C. section 1232g (a) (5) (A).
As my examination of the correspondence reveals that other
student names are mentioned and by that mentioning an exemption
under the Virginia FOIA relating to scholastic records of those
students applies and redaction is in order, again, it is not
necessary to decide the Buckley Amendment objection. Moreover,
petitioner, although arguing that the scholastic record exemption
under state and federal law does not apply, agrees in a letter that
redaction of other student names would "solve all concerns."
Finally, there is the question of the exemptions claimed for
"memoranda, working papers and correspondence . . . held or
requested by the Attorney General under section 2.1-342 (B) (4).
Under the foregoing principles the Act is to be liberally construed
to achieve the policy underlying the Act. It has also been held
that giving liberal construction entails giving exemptions in the
Act narrow construction. Marsh v. Richmond Newspapers, Inc.,
223 Va. 245, 255 (1982). The materials at issue relative to this
exemption consist of correspondence between James Mingle,
university counsel and special assistant attorney general and
counsel for Leggett, Williams & Connolly, about Leggett.
Correspondence, not defined in the Act is otherwise defined in
Black's Law Dictionary as:
Interchange of written communications. The letters written by a
person and the answers written by the one to whom they are
addressed.
A liberal construction of the Act and a narrow construction of
this exemption does not result in disclosure of this correspondence
because under the plain meaning of this statutory language the
letters are "correspondence held by the office of the Attorney
General." These letters are just that, correspondence, and thus
exempt from disclosure under section 2.1-342 (B) (4).
Accordingly, the Court will permit disclosure of the documents
submitted and inspected in camera as follows:
1) Letters between University administration officials and
Williams & Connolly with student names redacted.
2) The legal billings and expense statements.
3) The draft complaint.
Ms. Wyatt can prepare an appropriate order noting the parties'
exceptions. The Court will leave to the respondent the task of the
redaction according to this letter, after which the documents
permitted for disclosure can be submitted directly to
petitioner.
Footnotes:
1. The University has furnished documents
covered by the request to the Court for in camera inspection.
2. Afterwards, not only did the University file
a responsive brief but the parties thereafter filed letters
responding to points raised by the other. The last letter was
received on or about December 9.
3. The Petitioner refers to this exemption as
"work product."
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