HoodaThunk?

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:

1. 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
2. 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.