At least 9 court cases, at all court levels, will shape and define the state's FOIA landscape
This has been a busy year for the Freedom of Information Act in Virginia's courts. From challenges to the residency requirement in the 4th U.S. Circuit Court of Appeals, to the standoff in Onancock over an employment contract, citizens, activists and government took to the courts to right what they considered wrongs in the interpretation or application of FOIA.
At the federal level, two plaintiffs have been arguing for at least two years that the part of FOIA that says the law can be used only by citizens of Virginia (and media circulating in or broadcasting to Virginia) is unconstitutional.
The Department of Social Services denied Mark McBurney of Rhode Island certain records related to the child support enforcement action he filed against his ex-wife because he was not a Virginia citizen, though he had been a few years earlier.
Henrico County denied Roger Hurlbert's request for records related to real estate assessments for the same reason: he was a citizen of California, not Virginia.
The case went up to the 4th Circuit on a procedural issue before it was returned to the lower courts for consideration on the merits. The government defendants won at the trial level, and at oral arguments in late October, the plaintiffs' attorney faced stiff questioning from Judge Paul V. Niemeyer. In particular, he expressed doubt that Hurlbert had been prevented from practicing his common calling (his job) under the Privileges and Immunities Clause of the U.S. Constitution.
The Virginia Supreme Court held that the State Corporation Commission is not subject to FOIA. The November decision capped a long-running dispute between the SCC and Chesapeake resident George Christian. The SCC gave Christian some of the records he asked for, but withheld others, noting that both of its responses were guided by internal rules related to the release of records, not by FOIA.
Writing for the unanimous court, Justice Leroy F. Millette Jr. wrote that FOIA did not apply to the SCC because it is a constitutionally established office. The Supreme Court indicated in two earlier decisions that the SCC was not subject to FOIA, but did not decide the issue directly until this case.
In Fairfax, Judge Leslie Alden ruled on several FOIA issues raised by a group of parent-activists against Fairfax County Public Schools. Fronted by plaintiff Jill Hill, the group argued the board members held a de facto meeting when they conducted a quick-fire exchange of email prior to a board meeting. Alden disagreed but said the board did violate FOIA when it allowed one of its members to participate in a closed session by phone. Alden also ruled that some of the school superintendent's emails should have been released. Nonetheless, Alden refused to impose any penalty. The Virginia Supreme Court said in December that it will review the ruling.
In Loudoun County, the local Board of Equalization is claiming that it acted properly when it escorted Beverly Bradford out of a meeting after hearing the click of her camera as she snapped a picture. Bradford sued for not being allowed to record the meeting, while the board argued Bradford did not seek prior permission to record and that her picture-taking disrupted the meeting. The Loudoun Board of Supervisors urged the BOE to settle the case and refused to pay for the BOE to hire outside counsel. Meanwhile, the BOE is seeking a court order that would require the supervisors to pay the BOE's legal bills.
A judge in Smyth County was called to review several records related to a former Saltville Town Council member. When the Saltville Publishing Company requested records of communication sent and received by the former member, both he and a town employee objected to the release, saying the records were personal and not related to the transaction of public business. In an unusual twist, the town sought a court declaration on whether the records could be released. Judge Isaac Freeman reviewed all the records in closed chambers and determined that yes, some of the records were personal and could be withheld, but others did have to do with the transaction of public business. Those had to be released.
In Onancock, on the Eastern Shore, the town manager (who doubles as the town attorney) refused a citizen's request to turn over an unredacted copy of his employment contract. Charles Landis requested the record to show that the town hired the manager, who did not live in Onancock, before changing its policy that used to prohibit hiring a manager who did not live locally.
Prince William County is suing the Department of Homeland Security over the release of records related to the illegal immigrants the county turns over to DHS. The federal FOIA request was prompted when an individual earlier turned over to the department, Carlos Martinelly Montano, was released and later killed a nun while driving drunk.
A federal judge in Norfolk ruled that voter registration applications must be disclosed. The judge said federal law trumps Virginia's restriction on access to the applications, which the advocacy group Project Vote sought after Norfolk State students complained their applications were rejected in 2008. VCOG has filed a friend of the court brief in support of the ruling.
Meanwhile, the FOIA dispute between the University of Virginia and the American Tradition Institute over access to former professor Michael Mann's email and records dragged on when a judge ruled in early November that Mann could intervene in the case.
ATI filed its FOIA request for Mann's records in January 2010. UVA initially responded that it would respond, but then did not. In May, a court ruled that UVA had 90 days to either release the records or to invoke any applicable exemptions. In a protective order, the judge also said at that time that ATI could privately view even the exempt records to determine if it wanted to challenge the exemption's use. Mann filed his motion to intervene toward the end of the 90-day period.
The judge's new ruling allows UVA to renegotiate the protective order and says the parties can pick a neutral third party to review potentially confidential records.
The case has drawn widespread attention, with the FOIA issue often getting obscured by debates about the underlying data -- climate change -- and academic expression.
UVA has not explained why it did not invoke any available exemptions when ATI's request was first made.