Virginia FOIA ruling involving police report draws fire

Friday, December 22, 2000

The Reporters Committee for Freedom of the Press and the Virginia
Coalition for Open Government have joined forces in an effort to overturn a
trial court ruling in Virginia that has raised the possibility of excluding
more than 500 local and county government officials from the state’s Freedom
of Information Act.

The two groups have filed a friend-of-the-court brief in a case that
involves a Fairfax County prosecutor’s refusal to turn over a police report
to a lawyer defending a client charged with carjacking. But the carjacking case
was quickly overshadowed when the defense lawyer, James Connell, filed a
Freedom of Information Act request for the police report, and the trial judge
ruled that the prosecutor did not have to provide the information.

The judge’s rationale was that because the commonwealth attorney
(the prosecutor) held a job that was established in the Virginia Constitution,
his office was not a “public body” and therefore was not subject to the
same FOI rules that most other Virginia public officials are.

Forrest (Frosty) Landon, executive director of the Virginia Coalition
for Open Government, said the implications of that trial court holding were so
serious that his group joined with the Reporters Committee in taking the first
legal action in its five-year history to try to get the ruling overturned.

Landon said that if the ruling stands, it could affect four other
categories of elected public officials whose offices also are established in
the Virginia Constitution — city and county sheriffs, treasurers, revenue
commissioners and clerks of court. With the city and county attorneys added to
that group, it comprises more than 500 elected local government officials,
Landon said.

“If this decision by this local circuit court should be upheld by
the Virginia Supreme Court or just not overturned … it would set a terrible
precedent,” he said. “It would say that these very important elected local
offices are not subject to the rules that everybody in the Executive Branch of
state government and in all localities otherwise must follow.”

Never before in the 32-year history of the Virginia FOIA has such an
interpretation been issued, Landon said.

“It’s just been a given that the same rules apply to these elected
constitutional offices as to city councils or school boards or boards of
supervisors or city managers or county managers — all the other officials of
local government. Just because they have their roots in the state constitution
rather than statute, it never occurred to anyone until now that these elected
offices might be immune from the act,” he said.

Landon noted that the trial judge also appeared to be going against
two or three Virginia Supreme Court rulings involving access requests to
constitutional officers. “In those cases, the court has either ordered some
disclosure or total disclosure of what was being sought and has said,
implicitly or explicitly, that these offices had to follow the rules,” he

Lucy Dalglish, executive director of the Reporters Committee, said her
group was “appalled that a court would determine that a commonwealth attorney
does not qualify as a public office under the FOIA.”

In the brief, an amicus curiae filing, the two groups argued that it
would be harmful to the public if prosecutors were excluded from the definition
of “public body” subject to the FOIA statute. The brief listed a number of
areas where the conduct of prosecutors has been called into question, such as
in racial-profiling cases, to bolster the argument that the public has an
interest in monitoring how prosecutors do their jobs. The brief also said that
the public has a right to know how its tax dollars are being spent — and that
can only happen if the office and its records are subject to the FOIA.

Much to the surprise of the two groups, the lawyer for the prosecutor
replied by filing a motion to have the amicus brief thrown out. He argued that
the case “does not involve the interest of the press.”

That infuriated both Dalglish and Landon.

“I was astonished,” Dalglish said. “It shows an amazing lack of
understanding of what the media does and an amazing lack of understanding of
what the public’s interest is in the public’s business.”

Landon said he thought the argument of no media interest in the case
was “somewhat bizarre.”

“I think it’s just a given that any issue involving freedom of
information rights and responsibilities is of interest to the media. All
citizens, whether the media or general public, have an unarguably self-evident
interest in protecting the right of access to the information,” he said.
“Our coalition went into the case representing that viewpoint, that it’s in
the public interest and the interest of the media who act as surrogates for the
public. We were quite dismayed to learn that somebody would think that wasn’t
an unarguable position to take.”

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