Flawed ruling: logic built on faulty premises fails miserably.

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 Lori Waters has been of some concern to me. Specifically, the ruling of the judge in the case (Judge Dean Worcester) that public officials are basically owed no privacy of communication due to the fact that they’re public officials is what I find to be a horrendous overreach with disastrous consequences for public service in general and Virginian governance in particular. Thanks to the efforts of some folks involved, I have gotten a copy of the judge’s ruling (a public document in the true sense of the word) and have had a chance to go over it in its entirety. My concerns are not abated.

This post actually represents a 4th attempt to blog on this matter. In each of my previous attempts I made a mistake in that I approached the text of the ruling made by Judge Worcester with an eye toward refuting his many claims. (“Presumptions,” as he refers to them.) Traveling that route not only takes time to list, refute, and provide any number of myriad examples proving the refutation, it also draws one into a point-by-point argument that has very little to do with the issue at hand. So, casting aside such inane presumptions as that public officials cannot be acting outside of their official capacity at any time I am focusing my attention on the matter that should have been the focus of the Court’s ruling: can a FOIA request and subsequent demand for a writ of mandamus force disclosure of documents deemed by the custodian of those documents to be private or personal?

I have scanned the 7 pages of the ruling and produced 7 image files showing the faxed document exactly as I received it with 1 change being to remove the fax header at the top of each page. So far as I am aware, this ruling is a public document – in the true sense of the word – and it is, therefore, permissible to post it in its entirety. You will find the links to each page below. Feel free to download them and follow along.

Reading the Judge’s ruling and skipping over (for the moment) the rather tortured logic used to justify holding a position that an elected official must be presumed to be transacting public business with every breath taken and word spoken, you will find that the ruling actually centers not on the documents themselves but on Supervisor Waters’ actions in this matter.

While Judge Worcester characterizes the letter of the FOIA law as unclear and chastises the General Assembly for not “creat[ing] a specific exemption for personal or private communications or records” the truth is that the law is explicitly clear on the matter. In fact, within the text of this ruling the judge cites as presumption that private or personal records are, by definition, not public. FOIA defines public records as “all writings and recordings…prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business.” FOIA is not in need of clarification; to the contrary, the definition of what is a public record is quite well written and is flexible enough to cover both past and existing technologies as well as those in the foreseeable future. The crux of the matter is those last 4 words: “transaction of public business.”

If a document does not address a transaction of public business within the scope of the official’s official capacity then it is not a public document as defined by FOIA. As such, it is not subject to disclosure under FOIA. Throughout the text of FOIA, the keeper of the documents is referred to as the custodian of the document and it is the custodian who is granted the leeway to determine whether the document is subject to FOIA. It is clear that the judge does not like the notion that Ms. Waters, in seeking to comply with the FOIA and operating as the custodian of the documents in question, exercised her judgement in determining which documents were public and which private. Seeing this as an undesirable situation and pretty obviously unwilling to trust that Ms. Waters acted in good faith in her compliance actions, the judge seeks to usurp her judgement with his own. Since the law is clear that the custodian of the documents is responsible for determining the subjectivity of the documents to FOIA, he pursues the 1 avenue open to him: he seeks to provide seemingly rational coverage for the conclusion that all things a public official says or does is public by default.

To support the conclusion, the judge asserts as axiom that one must presume that an elected official is going to do the job to which they are elected. Since modern communications and e-mail permits an official’s office to travel with them at all times, the judge asserts that one must presume that any communication to or from the official must then be considered to be public business and would be, therefore, subject to FOIA.

In logic, all that is necessary to refute a premise advanced in support of an argument is to show that the truth of the premise is in question. Since it is child’s play to show any number of actions and situations where an elected official might, in the course of their lives, perform actions or speak on matters not at all related to their elected jobs, the premise that one must assume that all actions and communications are job-related fails miserably. The unspoken assertion, here, is that since one cannot prove emphatically that a given official is speaking on private or personal matters at a given point in time, one is forced to assume they are not so speaking at all times. No one has ever confirmed a sighting of a unicorn but to say that they absolutely don’t exist is a conclusion that cannot be completely proven. Who would then support environmental restrictions offered solely to benefit unicorns, whose existence we cannot disprove and must, therefore, presume? Such a suggestion would be laughingly dismissed as nonsense because, while it cannot be said that unicorns positively do not exist, our experience is long and wide enough to say that if they did exist we’d have likely seen them by now. We haven’t. Therefore, it’s a safe presumption that they do not.

Our experience with public officials (people, actually, and elected officials are still people) shows us that they are no different than anyone else in that they have lives that stand completely outside their job duties. To assert that they do not is nonsense easily seen as such by reasonable people. Since the elected officials do, indeed, have lives and communications that stand outside of their official capacity, then they have lives and communications that are private. Since they have private communications, the issue as to whether or not a document is to be considered public comes down to the content of the document, not who the document was sent by or what communications medium was used. The language of FOIA makes clear that the document must deal with a transaction of public business and that the custodian of the document makes that call. This ruling sidesteps that pivotal issue in favor of pressing the judge’s personal distaste for the custodian’s role in determining whether given documents are subject to FOIA. If the judge would like to call for the General Assembly to write a clarification to the law, he should be calling for the GA to clarify the role and identity of the custodian.

This case will serve as precedent for other such cases in Virginia. The Appeals Court should overturn this ruling and send the case back for Judge Worcester to rule on the true issue, which is whether Ms. Mann’s call for a writ to gain access to documents declared private by the documents’ custodian is warranted under the law. I think it’s pretty clear that it’s not, but 1 thing at time.

Update: Here are the links to the files, 1 per page, of the ruling. Thanks for your patience.

Sally Mann v. Lori Waters, page 1
Sally Mann v. Lori Waters, page 2
Sally Mann v. Lori Waters, page 3
Sally Mann v. Lori Waters, page 4
Sally Mann v. Lori Waters, page 5
Sally Mann v. Lori Waters, page 6
Sally Mann v. Lori Waters, page 7

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