What is and is not accessible via FOIA in Virginia
In the ongoing case regarding the FOIA requests made with reference to communications with Loudoun County Supervisors an interesting assertion has been made. In the comments section to one of my previous posts on the matter, a principle in the case (Sally Mann) makes this statement:
All email with a supervisor is “political” and if it is “political” that makes it a FOIA’ble doc. It is important to have it this way so there are no secret substratas, no secret subgroups influencing public policy or decisions–the whole point of FOIA is to keep government open and to not allow secret communication or secret meetings…
(The comment ends with the ellipsis.) My definition of “political” encompasses far more than the work done by a sitting politician in the pursuit of their job, in this case Loudoun County Supervisor Lori Waters. This raised the question, however, of what documents are considered by the actual FOIA to be, well, “FOIA-able.” For that, we need to look at the definitions provided by the law:
“Public records” means all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business.
Those last 4 words are the critical point and that’s confirmed by the ruling that Judge Dean Worcester just handed down, which was the subject of that last post I linked to above. In the report on the ruling, the Judge’s pointed comment toward the General Assembly was this:
The General Assembly may want to create an exemption for personal or private communications, or to clarify the definition of “transacting public business,” Worcester concluded, but it hasn’t done so yet.
The critical issue of whether a record is subject to a FOIA request, then, is whether it can be reasonably classified as pertaining to the transaction of public business. If Ms. Waters wrote an e-mail to her campaign manager talking about the status of their bank accounts (balances, what banks they’re using, account numbers, etc.) that would most certainly be a “political” discussion. I would find it very hard to credit the idea that such a discussion could be considered a case of Ms. Waters “transacting public business.” Another example would be Ms. Waters talking with a family member via e-mail about whether or not the recent scientific breakthrough regarding stem cell generation should remove the embryonic stem cell funding fight from the upcoming Presidential races. Again, that’s clearly a “political” discussion that’s just as clearly not a matter of Ms. Waters transacting public business, particularly here in Dillon-rule Virginia that places the whole issue outside the scope of a County government.
It is this concept that makes the Judge’s ruling suspect to me. The Judge has effectively declared that the single use of an e-mail system on a private computer to discuss public business – to engage in the transaction of public business, to be specific – has classified every conversation on every matter to every recipient ever made using that same computer and e-mail system as a public record. I do not see how a reading of the law, as written, can support such a conclusion. The law is clearly written to be document-specific on whether a record falls within the scope of FOIA. It does not state that the inclusion of such a document into a private record storage renders the entire record store open to the public via FOIA. This was, and remains, my point with regard to this case.
I still think that the GA should step up and write a clarification of this law. Based on Judge Dean’s actions, it’s apparently needed. I also think that judges should err on the side of caution in cases such as these and do what they can to protect the privacy of individuals – those serving in public office no less than those who aren’t. It’s been suggested that the judge could have and should have appointed a “court arbiter” to go over the redacted e-mails in this case and make a call as to whether or not the redacted information dealt with the transaction of public business. That would have provided an unbiased eye on the e-mails (to remove the concept that the person with the interest in keeping things private being the one to determine whether something should be redacted) and a shield for the official’s personal communications such that they weren’t just handed over to a hostile party. I think that would have been the wisest approach in this case.
In any event, this is the crux of the argument headed into appeal. I think, if the appeals board is going to give the law an honest read, they will have to overturn this ruling.
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Ric, I have the judge’s written decision. If you want a copy, provide me with a fax number at the email attached to this comment.
I absolutely agree that “in the transaction of public business” is the key to this case. Sally Mann seems to believe that the redacted portions of emails somehow pertain to her several lawsuits against the county and that there is a big conspiracy against her in that regard. There is absolutely nothing to that notion.
Ric, I thouroughly agree with your reasoning. You are , indeed , a wise man. Would you toss your hat in the ring to run for the legislative body, please.
At the very least, I’d say that you have an excellent grasp of the Dillon rule that escapes approximately half of the LCRC in deciding their local issues.
Do you have a link to Judge Worcester’s opinion?
It seems to me that the Judge has confused or atleast co-mingled any one specific document and those others that share space within the same delivery platform. He seems to think all documents are fair game simply because they are neighbors on the same hard drive.
Fifty years ago that would be like saying all documents typed on the same typewriter were fair game. Even those letters you typed to your Aunt Betty just before the one you typed to the Gambino family.
I’ve checked and it doesn’t appear the General District Courts post their rulings like the Appeals and Supreme Court does. I’m going to try to get a copy of the ruling as soon as I can and (with permission) will scan and post it here. I’ll advise.
Ric, there are two opinions and I can fax them to you. One opinion is against York and Burton, and the second is against Ms. Waters. Email me how to fax you. I can fax you the documents that Ms. Waters redacted, too, if you would like to see what your fellow bloggers think about whether these were public records or not.
Sally
I’ll do that, look for an e-mail with the details. (When I can find a fax I can sit on for a bit.) As I understand it, the material Ms. Waters sent to you has, at least in part, information that she, herself, believes to be subject to FOIA, ergo they are public records, even in her eyes. I have no reason to contest that so my looking at those records would be useless to the debate. The contention – your contention – is that there is information within the redacted portions that should be considered public records also.
My issue with the ruling, as I’ve stated, is that the Judge has ruled that all of the records created on Ms. Water’s PC and e-mail system are public records simply because any of the records were determined to be public. I do not believe a reasonable reading of the law supports such a conclusion.
One wonders why Loudoun County doesn’t have a FOIA officer (or do they?) to handle requests like this. Virtually every agency I’ve worked with had at least one and it avoided precisely the conflict of interest the Judge based his ruling upon.
I understand your desire to prevail in this case but I cannot support it, both because of the damage it would do to the privacy rights of people stepping up to perform public service and because the language of the law doesn’t offer the position any support.
Ric, I don’t think that is what the judge ruled. But you need to look at the opinion. The ruling was related to what I had asked for, and that was correspondence to/from certain individuals, who are all political lobbyist types, with political agendas–three of them ended up running for office and two of them winning this time. Ms. Waters refused to say that any of the individuals were part of her campaign, and she could not tell the judge why the correspondence was “personal.” She could not remember one detail or general topic to support this contention of hers. She just said that since the computer was her personal computer, the emails should be presumed personal but the County Attorney had already sent them a memo telling them that if they used their personal computers for any county business, they would be subject to FOIA. There is no provision in FOIA for redacting public documents. Once something is said in a public document, then it it public. Remember, it was the Jeff Wolinski email to Mr. Burton which stated Burton should “ignore” me because I was ” not getting enough of it” at home. I wonder if those are the kind of “personal” statements that are being withheld. As a taxpayer, and the object of such statements, I think there is a public interest in knowing.
As reported, the Judge’s ruling is that Ms. Waters must turn over any and all e-mails to you that you request without holding any of them back (or redacting any portion of them) even if they are personal and contain no transactions of the public business. This is the case because – again, as reported – the Judge contends that modern technology makes Ms. Waters’ home her office and, therefore, everything that goes on within it subject to FOIA. Is this report inaccurate in some way?
Ric, thank you for pushing forward this debate. There are numerous issues to explore before clarity is achieved on this important issue. An issue that must balance the need for privacy amongst our public officials and the need for open governance. I support both goals. What I do not support is the use of FOIA for fishing expeditions. Especially when the FOIA request includes wide ranging references to private citizens.
When FOIA is used to target private citizens I have a problem with it. I was included in Ms. Mann’s FOIA solely on the basis that I was “perceived” to be a supporter of Mr. Wolinski’s efforts and Ms. Waters campaign. The only comprehensible reason I was identified as a source, was due to my political blogging activity. FOIA requests have gone to far if the requester is fishing for political gain by using private citizens or bloggers as recon fodder. There was no justification for my name being used or now appearing in this case. Why is a private citizen becoming a target of a FOIA? Ms. Mann is definately pushing the envelope of FOIA, and this is another example. If Ms. Mann’s effort to establish ALL data to be FOIAable, then even a private citizen’s “private” communications to a public official become fair game. What if a private citizen emails a public official about a reference for a good divorce attorney? What if a private citizen emailed a public official about a mutual friends drug habit. Or some other hypothetical private issue?
In someways, we should thank Ms. Mann for bringing this issue forward. I am hoping sounder judgment, via legislation or ruling, will lead to protection of private citizens, and the protection of private data of our public officials.
Sally Mann’s list of supposed conspirators all stem from Dean Settle’s mass email of his scathing response to her FOIA request of Jim Burton. Dean threw together a big list of names off the top of his head and copied them with his email. NONE of these people have anything to do with Sally Mann’s land use case against Loudoun County. She displays classic narcissistic tenednecies in thinking everything is about her and her situation. It simply is not true. Stevens Miller and Susan Buckley were copied on that email by Settle, and they have no clue about this mess, nor do they care.
I have spoken with Lori Waters on a number of issues, and Sally Mann’s lawsuits were NEVER a topic of conversation, in spoken or written form. Why? Firstly because I don’t care, and secondly, Mann has current legal action pending against the county and Lori Waters should not be discussing it, and she hasn’t.
This is all so surreal.
I must concur with Mr. Wolinski’s evaluation of the actual folks NOT involved in any part of Ms. Mann’s issues before the County. They WERE cc’d on one particular e-mail where I identified Ms. Mann as a hypocrite who was ready to abuse other people’s e-mails, while seeking protection for hers. It was a constitutionally protected opinion, and I expressed it.
This is THE ONLY connection that any of these people have to anything. They all have passed thru my e-mail server at one time or another.
Christian Curto , who was on the list, is a RPV representative in RICHMOND, in case anyone reading this hadn’t identified him in local County business.
Sally being Sally, built a huge bridge to nowhere, and jumped into a land where , somehow, they were all out to get her, just because I had talked to them at some point in the past about OTHER ISSUES.(mostly in part to the fact that I , too, could not care less about Sally’s pending land business…up until it crosses a line for favortism over other taxpayers).
Where Sally danced especially close to the electoral law was when she did not register or operate as a PAC when she seemed to be readily passing these FOIA’d e-mails around like candy to Roherty, Shockey, as well as e-mailing Phyllis with court dates where dirt on her opponent could be secured… Is exactly where I got concerned .
Thankfully, Phyllis is a woman of the absolutely best caliber and did not participate.
Jeff is correct that the list of names came from one email to a group including Jim Burton, where Jeff responded, that I should be “ignored” because I was not getting enough of “it” at home. I am entitled to know what this group has been communicating with our board about. It is clear that Stevens Miller and Susan Buckely have nothing to do with any of this, and that their communications were all to the government server, totally professional and as expected completely polite. For George Hidy and George Maravetz, although some of the emails showed more of a personal nature, same thing–completely professional and nothing unexpected or in any way improper. For Jeff Wolinski, I do not think the same is true, and I believe that he is Loudoun Insider who did post about my property and took positions on it. Also, there are emails to Ms. Waters from Loudoun Insider. The emails that were redacted were all emails to or from Jeff Wolinski. By oversight, I do not think I requested emails from Dean Settle.
As I said, the opinion was tied to specific facts, and you need to post the opinion, and I will fax you the redacted emails as well, so you can see what the judge said and saw, and make up your own mind about it.
My e-mail is the ONLY one with all those names on one same list.
So what, Sally? I still stand by my contention and believe you to be attention starved and narcissistic. That is my opinion and I am entitled to it. I still believe you to have some legitimate gripes with the county bureaucracy, and I make much of my living fighting bad environmental decisions by regulators. I could have been helpful to your cause, but you have gone off the deep end in your vendetta against Lori Waters, who I consider a godd friend of mine. Your own actions have led many to discount what you say because of the way you say it. I would imagine any good lawyer would encourage you to keep quiet while your cases are pending.
As far as the whole Loudoun Insider thing goes, I know who it is and I’m not telling the likes of you. You have been wrong about many things and you of all people should know by now that eveyrthing is not as it appears on first glance. Loudoun Insider performed a valuable public interest role in this past election cycle, and the common suspects have all vowed to neither confirm nor deny.
I have a real problem with FOIA if because my name appeared in a :cc on an email, that I had nothing to do with, I become “named” fodder for a FOIA fishing expedition. Does this now mean anyone who has ever communicated to a public official is now subject to a FOIA? I do not think the intent of FOIA was to look into the private matters of private citizens. It’s an abuse of the spirit of FOIA. This issue becomes increasing important if efforts are successful in identifying private communications to and from public officials become fair game for FOIA requests.
When I was a child my grandmother told me that the people are often irritatied by other people who have their same characteristics. That is so true for Wolenski and Mann. You two are just alike. You both feel you are ALWAYS correct, you both tend to rant when you speak (write), you both need to have the last word, you both overstate or understate an issue to your convenience, you both twist the words of others, and you both think EVERYTHING is about you. Finally you should both listen more and talk (write) less. No doubt you will both disagree with this post. But that will just further prove my point.
I am most definitely a get the last word kind of guy. So what? This is my right as an American citizen. At least I take the time to participate in the public dialogue while so many others sit idly by. I most definitely do not think everything is about me, and have been defending myself against continuous attacks from Ms. Mann. Some have suggested that I just ignore her, but that’s easy for someone to say who isn’t the subject of attacks. I am a fighter and will not back down. I also listen plenty, dare I say much more than nearly any other citizen in this county. Finally, I flatly deny you your assertion that my responding to you proves any of your points. Thankfully this whole FOIA mess should be cleared up in January with the hearing of the appeals. Hopefully.
Okay Ms. Mann, now it’s your turn.
I know Mr. Wolinski, as well as Ms. Mann.
I’ll tell you that your characterization of both is lousy.
I’ve never seen Wolinski “reach” for aconclusion. He’s solid, and when he doesn’t have the actual facts to support something, he “speculates”, or floats a hypothesis.
Conversely, Ms Mann actually seems to let her suspicions manifest into a firm reality in her mind, and spouts tham as facts.When asked to back up what has been stated to be a fact, she is suspiciously left wanting.
I’ve had numerous statements “twisted” by Ms. Mann, and even more twisted by Ms. Munsey on the Living in LoCo blog. In all my months of seeing Mr. Wolinski’s responses and post there, I can only remember one where he even got close to the definition of “twisting”.
That concerned how much information Ms. Mann sent to Ms. Randall, and even that was phrased by Mr. Wolinski as an “inference” of an activity.
Yes Mr. Settle, but depending on the issue, Mr. Wolinski “speculations” or “floats” he can actually harm others. Let’s use your example. Mr. Wolinski could at any time contacted Ms. Randall, but he did not, instead he chose to “speculate” to the point that Ms. Randall actually started to be contacted by others who believed she was in cahoots with Ms. Mann.
A hypothesis is something that can’t be proved. If Mr. Wolinsiki instead makes the choice not to investigate because the truth, which is readily available will not match his “speculation or hypothesis” he is doing just as much damage as Ms. Mann who often makes harmful “speculative statements”
They both do this and then hide behind the statement of “this is just my opinion” or I have the right to free speech. They ignore the facts if the facts do not support their opinions, speculations, hypothesis etc.
Yes, these two are very much alike, and both can be quite dangerous.
Please, Public Citizen, you’re really reaching. Phyllis Randall and her campaign manager were way too sensitive about this issue. I never ever even speculated about Randall contacting Mann, I was always firm that Mann contacted Randall. I will admit that I was mistaken in believing Mann made an offer to supply Randall with the fruits of her FOIA fishing expedition. The text of the email contact by Mann to Randall does not support that, but as alluded to above, I do believe that such an offer can be inferred. I do not have the free time Ms. Mann apparently has to “investigate” everything to death. Public Citizen sounds like a lawyer looking for work with the “harm” term being tossed around so much.
I just love it when people prove my point. Jeff you say,
“Phyllis Randall and her campaign manager were way too sensitive about this issue. I never ever even speculated about Randall contacting Mann”,
Jeff I NEVER said, or even implied that you said that Randall contacted Mann. Thus you twist my words to fit your agenda. What I said was
“Mr. Wolinski could at any time contacted Ms. Randall, but he did not”,
Also I siad,
“Ms. Randall actually started to be contacted by others who believed she was in cahoots with Ms. Mann”
OTHERS Jeff not YOU, hmmm, let’s see what do you say to Ms. Mann everything is not about you. Jeff you may want to start taking your own advice
Finally you say,
“Public Citizen sounds like a lawyer looking for work with the “harm” term being tossed around so much”.
So I guess I’m not allowed to have an opinion unless I’m an out of work attorney. I think it’s just hilarious that you don’t see the similarities between you two, but it’s always hard for people to see the plank in their eye when they are busy pointing out the speck out in the eyes of others.
Even I am tiring of this back and forth. You prove my point that you have a reading comprehension problem. Here is the point I addressed:
“Ms. Randall actually started to be contacted by others who believed she was in cahoots with Ms. Mann”
I never said this was about me as you insist in your response. Randall said she was contacted by others, certainly not by me since I never thought her to be in cahoots with Mann. I never insinuated that you implied that I said (this is getting convoluted!) Randall contacted Mann – OTHERS did as you go on to state. Apparently Phyllis was contacted by people who thought she was coordinating with Mann. I never thought that to be the case. End of that story.
I do know that Phyllis would like to keep herself out of this and I’ve been trying to do that since she provided the original email. Why don’t we move beyond Phyllis and back to the FOIA issue at hand.
Of course you can have an opinion and express it, but you can expect me to counter you when you criticize me. Sorry if you don’t like what I say or how I say it, but it is what it is.
Oh my gosh, you really think I’ve been talking about Randall, she is just the example I was using since Settle mentioned her.
I’m talking about the uncanny similarities between you and Ms. Mann. And your last statment, I think I heard Mann say that at the LCRC meeting, Simply uncanny!
“Remember, it was the Jeff Wolinski email to Mr. Burton which stated Burton should “ignore” me because I was ” not getting enough of it” at home.”
Well that certainly has nothing to do with “public business”.
“I am entitled to know what this group has been communicating with our board about.”
Actually unless they were discussing the “public business” you don’t. THAT is the whole point being missed here.
Disclaimer: This post is a statement of opinion and is in no way meant to impugn or denigrate anyone or group of persons. Furthermore, NOTHING is to be construed as a statement of FACT. Furthermore, I have no ability to confirm the validity of the material in this post nor do I have any specific confirmable knowledge as to whether the material is either true or false.
I strongly disagree with your characterization. Mann has stated as fact, and I’d have to read back thru volumes of her offerings (and I’m not going to) to find one instance where she’s said “it’s my opinion”. She presented most recently that Stevens Miller had taken a large contribution from HCA. It was presented as a fact. It was not.
THAT is the difference in the two. All of us have LEARNED to add that the typing we just did is OPINION around Ms. Mann.
Actually, Public Citizen….your prose is vaguely familiar. Have we met? Have you ever twisted MY words?
10 feet – could it be??!! The long lost Planning Commissioner? There is a certain cadence to PC’s posts….hmm….
Public Citizen
, you actually listen to what she says?
You must have been one of 3 or 4 members of her “fanclub” that night. Seriously…that’s how many people were impressed with her attendance. Of course, we were all polite and allowed her to rant, and with all in complete silence, at that!!!
[...] Posted on 13 December, 2007 by Ric James Readers of this blog will know that the local case involving a Freedom of Information Act (FOIA) request made by one Sally Mann of Loudoun Supervisor [...]
Pingback by Flawed ruling: logic built on faulty premises fails miserably. « HoodaThunk? | 13 December, 2007
[...] Readers of this blog know full well my stance on the matter from my previous posts, here, here, here and here. While Judge Horne agrees with most everyone familiar with this case that the issue is how [...]
Pingback by Judge Horne: “I am not ruling that every record in a public official’s possession is a public record.” « HoodaThunk? | 30 January, 2008
[...] is clearly more in line with the FOIA law as written than Judge Worcester’s. This was a point I made myself in a number of posts on this matter: The critical issue of whether a record is subject to a FOIA [...]
Pingback by Judge rules in Loudoun FOIA cases « HoodaThunk? | 9 February, 2008