Legislation Could Solve Discrepancy Between FOIA and Judges' Manual, Advisory Council Chair Says
By Adele Uphaus
MANAGING EDITOR AND CORRESPONDENT
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The remedy for a discrepancy between Virginia’s Freedom of Information Act and the procedural manual for the state’s General District Court judges is to introduce legislation that makes interpretation of the Act “unmistakably clear,” said Delegate Marcus Simon, Chair of the Virginia FOIA Advisory Council, on Wednesday.
There was not a quorum of Advisory Council members present at Wednesday’s quarterly meeting, so the body was not able to vote on whether or not to recommend legislation or take any other action.
The Council was considering an issue that came to light this fall. Attorneys for the Spotsylvania School Board successfully argued in October that a petition filed by a Spotsylvania parent seeking the release of emails and text messages responsive to multiple FOIA requests should be dismissed because it was “improperly served.”
The parent had emailed the petition to the school division, rather than having it served by the Sheriff’s Office or a civil process server.
The attorneys appeared to base their argument for dismissal on Virginia’s Judicial District Court Benchbook, which states, “Providing a copy of a petition before filing is not a substitute for service of process after filing.”
The judge who heard the case and dismissed it, Jane Reynolds, was on the committee that authored the most recent edition of the Benchbook.
However, Virginia Code does not state that FOIA lawsuits must be “served,” only that they must be “received” by the party against whom the petition is brought.
The parent, Theodore Marcus, argued in an appeal of Reynolds’ decision that the school division’s attorneys had “leveraged [the Benchbook] to deprive Petitioner of his day in court.”
Marcus emailed a summary of the issue to the Advisory Council and Simon—who represents the House of Delegates 13th District, which is in northern Virginia—asked that the issue be placed on the agenda for Wednesday’s quarterly meeting.
Marcus submitted a written statement about his concerns regarding the ruling, his petition, and the events leading up to it, which was posted with the agenda for the quarterly meeting and distributed to all council members.
Marcus also spoke briefly at the meeting, urging the council to recognize that “a FOIA requester is not a machine but a person seeking to bring integrity and transparency to government.”
Simon said the council’s authority over judges is “tricky,” but that if it’s evident that judges are “getting things wrong,” the solution is to introduce legislation that seeks to prevent any ambiguity.
He also said that “sometimes the contemplation of legislation is enough to get everybody on the same page.”
None of the other council members addressed the Benchbook issue.
There are four legislative members of the FOIA Advisory Council—Simon, Delegate Elizabeth Bennett-Parker, and Senators Richard Stuart and Mamie Locke—but any member of the General Assembly can carry legislation seeking to remove any ambiguity from the code section on how citizens can enforce their rights under FOIA.
Stuart, who represents the 25th Senate District, which includes Caroline and King George counties, was not present at Wednesday’s meeting. Locke was also not present.
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For those who would like to view what Mr Marcus said before the council please watch and share. This is a man who cares about his community. Someone making such an impact on the lives of teens should not be treated the way Mr Marcus has been treated. He saw, heard and gave value to every teen he encountered.
Keep the faith, Theo. You are fighting the good fight. I was very encouraged by Delegate Simon's remarks. It is clear that the only remedy for the district court's clearly erroneous reading of the relevant statute and the error in the district court bench book is exactly the kind of legislation Delegate Simon mentioned. I encourage him and/or other legislators to make the will of the legislature even more clear since some seem to not know how to apply basic principles of interpretation of legislation.