October surprise: Two pro-public rulings from Virginia's top court

Over the past several years — heck, most of the 2000s — I haven’t had a lot of opportunities to celebrate a pro-public win on FOIA issues in the Virginia Supreme Court. Much less two. In one day. Unanimously. So, pardon me if I bask in the glow of yesterday’s rulings in Hawkins v. Town of South Hill and Daily Press v. Commonwealth.


Ahhhh. There we go.

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I shouldn’t be so harsh. Virginia’s highest court has ruled in favor of petitioners in several cases in the not-too-distant past. The last decision that was decidedly not in the public’s favor was Transparent GMU v. George Mason University in 2019, but before that there was a string of depressing decisions, including the Virginia Department of Corrections v. Surovell case that incredibly ruled there was no duty to redact exempt information from otherwise non-exempt information.

If you’re playing the long game, however, it is the Surovell case, and the legislature’s response to it, that set the stage for the court’s ruling, written by Judge Thomas Mann, in Hawkins.

Read on.

What the Hawkins case said is that a local government, school district, state agency, public university, whoever, cannot call anything and everything dealing with an employee “personnel information” that can be completely withheld under §2.203705.1(1), the personnel exemption.

Despite FOIA’s policy statement saying that exemptions should be construed narrowly, it was not uncommon for public bodies to steadily push the envelope, shoehorning whatever they could into the exemption: Body camera footage of an officer’s activity on a public street; investigations into possible misconduct while checking a university student’s ID; the name on a hotel receipt submitted for reimbursement; the names of candidates awaiting a vote before being appointed to an advisory board; the process to be used to evaluate an employee’s performance; a job description; forms declaring outside employment; employee-satisfaction survey results; demographic breakdown of a public body’s workforce; a school district’s acceptable Internet use policy; surveillance video of an employee destroying public university student newspapers. All were refused at one time or another (and believe me, I could go on) as being exempt personnel records.

If I may be so bold: no more!

Therefore, we hold that “personnel information” for purposes of Code § 2.2-3705.1(1) means data, facts, or statements within a public record relating to a specific government employee, which are in the possession of the entity solely because of the individual’s employment relationship with the entity, and are private, but for the individual’s employment with the entity.

The definition, at first blush, seems to be old wine in new bottles. Body camera footage is data collected solely because the officer is an employee of a police department. An outside-job declaration is a statement in government possession because of the relationship.

But look carefully: (1) “relating to a specific government employee” (so, no demographic data, survey results, Internet-use policies that apply to everyone); and (2) “and are private” (so no surveillance video; investigative reports; or receipts for reimbursement).

The court favorably relied on FOIA Council opinions that repeatedly said the exemption is a “privacy-based” exemption, meaning it is designed to prevent the disclosure of personal information, not information within the course of the employee’s job duties.

[W]e look to an objective test, and hold that data, facts, and statements are private if their disclosure would constitute an “unwarranted invasion of personal privacy” to a reasonable person under the circumstances.

The Surovell case comes into play when the court set the stage for the above ruling. The court said that when the legislature changed FOIA to specifically undo the Surovell ruling on redaction,1 it signaled its intent to narrow exemptions and provide, when possible, partial disclosure.

And there’s this:

Our government belongs to the people it serves. By extension information retained by governmental entities likewise belongs to the people subject to legislatively mandated exemptions[.]


Look, I’m not saying the court’s ruling is a silver bullet that is magically going to make public bodies throw open wide the file cabinets, but by giving a definition and adding narrowing contours to what it thinks personnel information is, the court is saying that public bodies need to be much, much better at evaluating records under this exemption.

The Daily Press case extends the constitutional right of access to court proceedings — a common law right firmly established in 1980 by the U.S. Supreme Court in a case out of Richmond — to bond hearings. In this case, a circuit court judge closed a hearing on whether to revoke the bond of a police officer who had been charged with second-degree murder.

Relying on the “open courts” doctrine, the court said “experience and logic” require that a pretrial bail hearing be included in this constitutional presumption of public access. Common sense because “it would make no sense to categorically exclude members of the public from a judicial hearing addressing their own personal safety.”

Despite this constitutional protection, some court proceedings can still be closed, but only when a court makes adequate findings. The court rejected all three of the reasons given by the circuit court judge to justify closing the courtroom: (1) general concerns about how hard it would be to seat jurors during a pandemic (this reason was abandoned by lawyers during the appeals process); (2) the potential to compromise the defendant’s ability to be judged by an impartial jury; and (3) that some of the evidence to be discussed in the bond hearing was unrelated to the alleged crime.

The possibility of prejudice is never enough, the court said in rejecting the second reason. “The risk of prejudice must be so palpable and the need to combat it so necessary that the trial court could not confidently rely” on the juror-selection process.

The third reason was irrelevant, the court said, because at a bond hearing, the issue isn’t guilt or innocence of the underlying crime, and “evidence having nothing to do with the alleged crimes” can be considered. 

The opinion goes on to address whether certain records filed in the bond hearing should be unsealed, and some of them will remain sealed even after this ruling, but the sunshine-y part I want to bask in is the extension of the presumption of access to additional parts of the judicial process and the reminder to judges (and the parties who ask them) that closing courtrooms is serious business that requires more than discomfort or inconvenience.

So, thank you, Virginia Supreme Court justices. Thank you for this October Surprise. This autumn glow that pays tribute to the public and the press, elevating them to a moderately higher vantage point from which they can better monitor government actions taken in their name.

1. The enactment clause for the legislation specifically said, “[T]he provisions of this act are declaratory of the law as is [sic] it existed prior to the September 17, 2015 decision of the Supreme Court of Virginia in the case of the Department of Corrections v. Surovell.”

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