Open letter to FOIA Council vice chair Sen. Edd Houck
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.
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.
