Virginia FOIA Advisory Council to Consider Discrepancy Between State Law and Judge's Procedural Manual
Discrepancy came to light as the result of a petition seeking the release of records from Spotsylvania County School Board members.
By Adele Uphaus
MANAGING EDITOR AND CORRESPONDENT
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The Virginia Freedom of Information Advisory Council will consider a discrepancy between Virginia’s FOIA law and the procedural manual for the state’s district court judges at its quarterly meeting this week.
The discrepancy came to light this fall as a result of efforts by Theodore Marcus, a Spotsylvania parent and former Riverbend High School swim coach. In October, Marcus filed a petition asking Spotsylvania General District Court to compel the school division, School Board, and individual members Lisa Phelps and April Gillespie to release records responsive to multiple FOIA requests he made over the past year.
Lawyers for the Spotsylvania School Board successfully argued before Judge Jane Reynolds that Marcus’s petition should be dismissed because it was “improperly served.” They argued that Marcus’s petition should have been served either by the Sheriff’s Office or by a third-party process server, rather than emailed by Marcus.
However, Virginia Code does not require that FOIA lawsuits be “served,” only that they must be “received” by the party against whom the petition is brought.
“That language is intentional,” Megan Rhyne, executive director of the Virginia Coalition for Open Government, told the Advance in October. “These procedures are not put in place to be procedural booby traps for citizens who are trying to enforce their rights.”
The attorneys appeared to base their argument 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.”
Reynolds was on the committee that authored the most recent edition of the Benchbook.
In an appeal asking the court to reverse its dismissal of his case, Marcus wrote that “Although a court’s Benchbook is, presumably, not precedent of any type for the rendering of a decision … it seems inescapably clear that both [Judge Jane Reynolds] and Respondents’ counsel leveraged it to deprive Petitioner of his day in court.”
Marcus emailed a summary of these issues to Del. Marcus Simon (D-Fairfax), chair of the FOIA Advisory Council on November 15, upon the recommendation of the council’s executive director, Alan Gernhardt.
Simon responded later the same day through his chief of staff, who wrote, “Delegate Simon has asked that this be included on the next FOIA Council agenda.”
The item is on the agenda for this week’s meeting, which takes place at 1 p.m. on Wednesday, December 4, in House Room A of the General Assembly Building in Richmond.
Rhyne said in an email conversation with Marcus, which was shared with the Advance, that the council can either appoint a committee to study the matter, recommend or endorse proposed legislation to address the issue; or vote against recommending any legislation.
A legislative member of the council could also choose to introduce a bill to address it without the full council’s recommendation.
In addition to Simon, the other legislators who are members of the council are state senators Mamie Locke (D) and Richard Stuart (R) and delegate Elizabeth Bennett-Parker (D).
Locke represents the Hampton Roads area and Bennett-Parker represents the Alexandria area.
Stuart represents State Senate District 23, which includes part of Spotsylvania County and all of King George and Caroline counties, in addition to counties in the Northern Neck.
He is also the county attorney for King George.
This story has been updated to clarify the source of information about possible outcomes of the meeting.
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Thank you, Fredericksburg Advance, for keeping us informed on this important issue. Government transparency is obviously a problem in Spotsylvania (see the recent FOIA case you mention as well as litigation initiated by school board members against one another), in Stafford (see the denial of due process and lack of disclosure involving the Library Council), and in King George (see the decision to exclude the public from input on the county's mission and vision statement). A free press is essential to shining light on that which occurs behind closed doors and outside of the public's presence. The Freedom of Information Act is a mechanism to ensure the public has access to such information. The judge's ruling in Mr. Marcus' case was clearly erroneous. The statute involved is not ambiguous. Mr. Marcus cogently presented argument from the relevant statute demonstrated the error of the court's ruling. The district court bench book is clearly wrong and ignores the plain language of the statute. I urge the FOIA Council to make clear to the courts that both the district bench book and the judge's recent ruling are in error. Fortunately, we reside in a state where judges are term limited and their continued service is subject to legislative review. I trust that the FOIA Council will exercise its authority to correct the misinterpretation and wrong application of the current statute. It may have to expressly provide that service of process is not required in FOIA petitions (although that is the only possible interpretation of the current statute). I am grateful to the chair of the FOIA Council for giving focused attention to this matter.
Theo is doing us all a public service. We need more transparency and proper accountability in this case.
MP