Judge Thomas Horne has issued his rulings in 2 of the FOIA cases brought against members of the Loudoun Board of Supervisors by Hamilton resident Sally Mann. The cases involved Chairman Scott York and Supervisor Jim Burton, both still elected members.
I’ll see if I can locate a copy of the actual rulings and post them. In the meantime, reports by local papers show that the Judge had something for everyone in the case. Briefly put, Judge Horne ruled 2 things of significance:
- That a public official cannot withhold documents from a valid FOIA request simply by saying the documents are personal in nature and leave it at that, and
- It is the subject of the document in question, not the location or author or recipient, that defines whether the document is subject to FOIA.
Dealing with these 2 points in inverse order, let me point out that the Judge Horne’s ruling on what defines a public document 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 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.
Clearly, Judge Horne agreed. This will most certainly have a similar impact on Mann’s case with Lori Waters which is still pending appeal. The crux of the argument in that case is identical to this one – that whatever Waters says, to anyone, via any medium, must be presumed to be a public document. As Judge Horne said in these issued rulings:
The FOIA law, Horne wrote, addresses documents and records that have something to do with the transaction of public business.
“Thus,” Horne wrote, “the list of groceries to pick up on the way home from work electronically mailed by a spouse to a supervisor at his or her office and utilizing the County mail system would not be subject to production.”
It doesn’t matter where the record is found or originated or ended up, Horne wrote. The FOIA Advisory Council wrote in 2000 that it is “the subject of those e-mails that determines their status as public records.“
Emphasis mine. That statement goes to the heart of the Mann’s cases, all of them. With that ruling, her claim to each and every e-mail and document ever written by Waters disappears.
Back to that 1st point, however, I think the Judge is also quite correct. As I wrote:
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.
The Judge correctly concludes that the spirit of the law was never to allow a public official to simply rule all of his e-mail personal and therefore untouchable by FOIA and that there should be some accountability in cases such as these. He also sidesteps a problem with my plan, that being that an arbiter would, by necessity, see all of the personal e-mail of the official, possibly violating the privacy of other citizens. By forcing the official to go on-record as to the basic subject of the document, demonstrating that it’s personal in nature, not business, there’s an overt act on the part of the official that can be referenced should that be necessary later down the line.
I think the best method for governing officials to follow is to rigidly separate their business documents and their personal ones. No business should be transacted using any communications systems except the official government ones. Each official that is expected to do business outside of their offices should be issued laptops that can connect in to the government systems and permit the officials to do their work. They should immediately return a message sent to their personal e-mail addresses that deals with official business saying that they can’t discuss that here and directing the author to their official account. No personal computers should be involved in this at all. Keep what is personal in the personal space and what is public in the public space. That way the FOIA requests can be adjudicated easily. Hard? Sure. But it can be done, I know for a fact. And if anyone in Loudoun’s government wishes to discuss the technical details of that, I’m happy to do so. I can also put them in touch with other engineers should they feel I’ve now developed a conflict of interest.
Well done, Judge Horne. Do that again for the Mann-Waters case and we’ll be done with this.
The Virginia House passed HB710 yesterday, a bill authorizing “any degree of physical force, including deadly physical force” by a lawful occupant of a dwelling against an intruder. It also renders that lawful occupant immune from civil suits brought for the injury or death of the intruder. The bill passed 80-19 and was sent to the Senate.
The Senate has a habit of killing this legislation, however, so it’s not out of the woods yet. If you believe as I do – that you should not be forced to flee your own home by the threat of being sued by the intruder who broke into your home to begin with – you need to pop off a quick note to your Senator and urge that they support passage for this bill when it comes to the Senate floor. The bill will go to the Courts of Justice Committee first, so if your Senator is on that committee you might pen a special request to move it out of committee and out to the floor for a full vote as quickly as possible.
Update: As before, the Senate has managed to kill this one. Read all about it.
One of the quietly recurring points made by several associated with the GWOT and the Iraq theater specifically is that the Department of State isn’t helping much and is, in fact, actively resisting progress in Iraq. Now comes word of a 10-page memo from a lawyer and former counsel to former Senator Bill Frist to U.S. Ambassador Crocker, one that is characterized as “blistering,” that says the DoS and Foreign Service have brought the worst of America to Iraq and has become “an albatross around the neck of the Coalition command.”
Manuel A. Miranda, a former counsel to Senate Majority Leader Bill Frist, spent the last year as a State Department contract employee at the U.S. Embassy in Baghdad. His official title was Senior Advisor for Legislative Framework in the Iraq Reconstruction Management Office.
In a ten-page memo obtained by FOX News, Miranda told Crocker the career diplomats tasked with helping the Iraqi government meet its legislative and institution-building benchmarks “are simply not up to the task,” that due to a “unionized attitude” and “built-in attention deficit disorder” at the Foreign Service and State Department headquarters, “hundreds of millions of taxpayer dollars are being wasted and poorly managed.”
“Any American graduate school study group could do better,” Miranda wrote.
Miranda details the second-guessing by DoS bureaucrats back in DC, a “dysfunctional failure to communicate and share information” that he describes as beyond anything that can be imagined, and levels an accusation that our Embassy leaders are intentionally withholding vital information from top DoS officials, General Petraeus, and from the White House.
The reporter (James Rosen) followed up with the DoS and was told by Assistant Secretary of State McCormack that the memo was just Miranda’s take on the matter and it wasn’t a view shared by “most everyone else” who has worked in Iraq. I’m not sure that’s true, considering the stories I’ve read over the past couple of years. The story makes specific mention – twice – of Miranda’s conservative leanings and ends with a reference to his being at the center of a scandal back before the 2004 elections where he accessed e-mails belonging to “his Democratic colleagues.” I find it wryly amusing that the reporter took pains to bring all of this up yet whenever Valerie Plame and Joe Wilson are the subject of a news article it seems their confirmed repeated lies are rarely mentioned.
The fact of the matter is that Congressmen have howled for investigations on far, far less than this. They should do so in this case and take a truly close-up look at the allegations. If there’s nothing to it, fine. But the notion that critical information is being held back by our own embassy staff should be troubling to everyone, regardless of which side of the debate on the GWOT you stand. We should know if it’s true and, if it is, we should know what that information is.
Fred Thompson, the one-time Republican presidential candidate, endorsed Sen. John McCain Friday, calling on the party to “close ranks” behind the presumed nominee.
“This is no longer about past preferences or differences. It is about what is best for our country and for me that means that Republican should close ranks behind John McCain,” Thompson said in a statement reported by the Associated Press.
I suppose I knew this was coming but I seem to recall that suggestions that Fred was going to endorse anyone were met with denials. No matter now, I guess. Fred’s endorsement doesn’t really move me one way or the other. My stance on McCain is a matter of McCain, not who speaks well of him.