White Dog Publishing Inc. v. Culpeper County Board of Supervisors
The fate of the lawsuit between three Central Virginia newspapers and the Culpeper Board of Supervisors is now in the hands of the seven justices of the Virginia Supreme Court.
The Culpeper Star-Exponent, The Culpeper Citizen and The (Fredericksburg) Free Lance-Star sued the board over an October 2004 closed meeting to discuss a contract to build a new school. According to City Manager Frank Bossio’s testimony at the May 5, 2005, trial in Culpeper, the board of supervisors was growing increasingly uneasy with the way the local school board was proceeding with its school-building plans. The school board had signed a contract, but the supervisors felt their concerns were being overlooked.
The supervisors called a closed meeting to talk about the contract with the architect. They invoked the FOIA exemption for discussions on awarding public contracts where public discussion of the contract’s terms would adversely affect the bargaining position or negotiating strategy of the public body.
The newspapers, joined by the Virginia Press Association, objected to this use of exemption §2.2-3711(A)(30), saying the exemption did not apply where the contract had already been awarded (and awarded by another public body to boot!). Visiting Judge Herman A. Whisenant Jr. disagreed. He ruled that the exemption applied because the supervisors were discussing the scope of the contract, with the thought that it might make amendments to it.
Before the Virginia Supreme Court, attorney Craig Merritt of the Richmond law firm Christian & Barton argued that Judge Whisenant’s interpretation makes the exemption boundless.
Prompted by questions from Justice Cynthia Kinser, Culpeper’s attorney, Roger Wiley of Richmond’s Hefty & Wiley, said the exemption’s reference to strategy could extend beyond negotiating strategy, that amendments to a contract could be considered under the exemption.
Chief Justice Leroy Hassell expressed skepticism that the exemption applied to contracts between public bodies, saying that it was probably meant to apply to the bidder-offeror stage of contracts between a public body and a private party.
Hassell also noted that regardless of whether final action was taken on the contract in open session, the press, and thus the public, was still deprived of access to the meeting if this exemption was wrongly invoked.
Attorneys’ fees were also at issue. FOIA allows the award of attorneys’ fees to a party who has "substantially prevailed." Merritt argued the newspapers had substantially prevailed because Judge Whisenant had agreed that the county’s notice for a closed meeting was defective because it was vague, and because one of the reasons given for the closed meeting was inapplicable.
Wiley said the trial judge rightly refused to award fees because the taxpayers should not have to pay for this first-time mistake and legal challenge. Wiley seemed to garner some support for his position from Judge Kinser.
A decision is possible in mid-September or early November.
UPDATE: On Sept. 15, the Va. Supreme Court ruled in favor of the papers, finding the board of supervisors misused the FOIA closed-meeting exemption, and the trial court erred in not awarding attorneys’ fees. Click here for the opinion, and here a news article on the case.
Giarratano v. Johnson
Under FOIA, most Department of Corrections policies are public record. Any Virginia resident may request copies. However, FOIA contains a provision stating that prison inmates are not entitled to any records.
The American Civil Liberties Union filed suit challenging this provision on behalf of Joe Giarratano, a Virginia inmate. Giarratano has Hepatitis C, and does not believe that he is receiving adequate treatment. He has sought VDOC policies on the treatment of Hepatitis C, but the department refuses to release them.
The ACLU argues that this denial violates Giarratano’s rights under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.
A hearing on the defendant’s motion to dismiss was held June 1 in the U.S. District Court in Big Stone Gap, but there had been no ruling as of press time.
Bland v. Virginia State University
Virginia Supreme Court Justices this month again displayed understandable frustration with those who disregard precedent and the state’s open records law.
A year and a half ago, Paul Bland, a former member of the Virginia State University faculty, requested copies of two annual reports that the Petersburg school had filed with an international accrediting organization. VSU complied under the commonwealth’s freedom of information act, but blacked out parts of the reports without explanation.
Eventually it came out that VSU was trying to protect personnel information, which is allowed under state law, but had also concealed mentions of Bland, which is not.
The trial court reviewed the full documents at a hearing and instructed VSU to release information about Bland, as state law requires. However, when Bland requested that the full reports be entered into a sealed record for review on appeal, the school balked, and the trial court sided with secrecy.
That did not sit well with the Supreme Court. In 1990 and 1999 decisions, the state’s top court directed lower courts to place such contested documents in the record for appellate review. If higher courts cannot look at the original documents, they cannot determine whether a state agency legally withheld information from citizen review.
-- The Roanoke Times
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