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Public officials and private lives – court rules
A public official cannot withhold documents from the public simply by saying they are personal, according to a ruling involving officials' right to a private life and the public's right to know.
Circuit Court Judge Thomas D. Horne ruled Jan. 30 that under the Freedom of Information Act, officials must supply written explanation for claiming some documents are personal and thus exempt from FOIA.
He also pared back a lower court's broad definition of what is covered under FOIA.
FOIA guarantees the public's access to public business, and all the documents and e-mails that go with that public business.
The case involves Hamilton-area resident Sally Mann's requests for documents from supervisors Jim Burton (I-Blue Ridge) and Scott York (I-at large). Mann's frustration with the process of subdividing her land on Harmony Church Road south of Hamilton led to the FOIA requests. She alleged that seven individuals – those named in the FOIA requests – have attempted to influence the fate of her land use application.
Mann told Judge Horne she has a right to know what, if anything, has passed between them and the supervisors who voted or would vote on her application. She requested all e-mails between those seven individuals and two supervisors written from January 2006 through the date of the request, Sept. 18, 2007.
Burton supplied the documents within the five days allowed by FOIA, but withheld some e-mails from his home computer. Those he withheld, he said, were personal, and not subject to FOIA.
A lower court agreed with Mann that letting an official decide what is public and what is private violates the intent if not the letter of the law. District Court Judge Dean Worcester ordered Supervisor Burton to turn over all e-mails to Mann.
Burton appealed that ruling to the Circuit Court, where Judge Horne disagreed with the lower court judge's ruling that all records in the possession of a public official are public.
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."
Horne ordered Burton to list which e-mails he is withholding and to "describe the nature of the record not produced or disclosed in a manner that, without revealing the information or contents of the record itself, will enable the party making the request and the Court to assess whether or not the record was prepared in the transaction of public business."
Horne defined public business as "those matters over which the public governmental body or agent of the government has supervision, control, jurisdiction or advisory power."
Because Burton acted on the advice of the county attorney, Horne denied a request for civil penalties. He ordered the county to pay Mann's court costs.
Mann, acting as her own attorney in the case, will prepare an order and enter it with the court. Burton must comply within five days of the date that order is entered with the court.
Mann also requested e-mails from the files of supervisor Lori Waters (R-Broad Run). Waters appealed the lower court's decision that she must turn over to Mann all e-mails from her personal accounts. No date has been set for hearing that appeal.
Under FOIA, the public body may charge for finding and preparing the requested documents. Horne ruled that the county's charge to Mann in responding to the FOIA requested to Supervisor York was too high. Horne ruled that the county must reduce its bill of $567.50 for producing e-mails between York and the seven named individuals by $450.
The county's bill for responding included 18 hours that York's aide, Keith Nusbaum, devoted to searching 24 volumes of hard copies of e-mails to the board of supervisors, as distinct from an individual supervisor. Those hard copies are kept in binders in the board office and are open to any member of the public.
Nusbaum testified in court Jan. 28 that Worcester ordered him to search those volumes. Mann argued that she could have have searched – and did –those volumes by herself, as could any member of the public.
Horne ruled that " ...a Court speaks through its orders." Since Worcester's written order did not include instructions for Nusbaum to search through the already-public volumes, Mann should not be charged for that part of the search.
No mention of a contingency plan. The BOS should appoint or create a position to review these documents for relevant responses. I am unaware that to do so would violate Commonwealth/Dillon considerations.If, somehow it does, then it falls to the GA to correct the oversight.
Posted by 10feettallandBulletproof
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If an elected official is claiming the documents they seek to protect are personal, why is the county attorney dispensing legal advice, representing a personal matter in court, and the taxpayer foots the bill?
Posted by byebyeburton
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For once I agree with Dean Settle. I think in a county this size, we need a designated employee to handle FOIA requests fairly and in a timely manner. Keith Nussbaum testified twice at the trials on this matter (the original trial and the appeal) that he is a part time employee and could not respond in the statutory 5 days, It took him more than a month to respond after the Court gave him extra time. No other public body is so slow, lax, or takes FOIA so lightly. Many FOIA's that I have made have simply been ignored. Plus, there seems to be no rhyme or reason to the charges which are all over the place, some very high (like the one Mr. York gave me, nearly $600 when most of the other similar searches were more like $20.) The county should not simply delete emails as they have been doing without standardized guide lines to ensure true public documents are kept the statutory 3 years. Also, in terms of "personal" emails, I know in Fairfax County, personal email is not allowed for county employees, and most larger businesses prohibit this. The County server should be reserved for public business, and anything that comes into the county email address should be kept and considered public. It is too easy to use "discretion" to delete emails and that "discretion" should be as limited as possible in order to avoid litigation, or the expense of having to screen emails to determine what is personal and what is not, and to justify personal emails, and litigate withholding emails. One way to resolve this is to only use government email accounts for public business. This is in the interest of the taxpayer and public trust.
Posted by sallymann
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Your ignorance is astounding.
They are PUBLIC SERVANTS IN PERFORMANCE of PUBLIC SERVICE. The county attorney is retained for EXACTLY this kind of foolishness. The County Attorney is a line of defense from those who would claim that they were harmed, even if that does not turn out to be so. I'm personally glad they did resist, and that the whole matter came before a Judge who could rule fairly and finally decide the matter on the face of the documents.
Posted by 10feettallandBulletproof
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You are so right about the use of the county attorney. Just another example of the waste of public money. However, indivduals who continually sue the county are doing the same thing. Between Mann and Madison, how much county employee time has been spent fighting these two? You do not have the right to spend my money because you want something which will benefit you financially. Just like Cheney spending my money to take his dog to the vet. Will someone please stop this and give her what she wants. In the long run, it will save county taxpayers lots of money. And while you are at it, give Madison what she wants and put her costly legal battle to a end. Will someone please tell me how much the county spends in legal battles ever year? Maybe if the zoning office administrator could write the regulations clearly the first time we could also save money. Perhaps the problems is with the county attorney who is suppose to give expert legal advice to prevent these problems.
Posted by DandeWithTheWolf
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The rules in the county are bent to help some people and bent to hurt or stop others. The County has stonewalled me, made up rules against me, pulled the rug out from underneath me....someone described it as the game Chutes and Ladders.
The county asserts that I cannot rely on the written words of the AG district ordinance they applied to me (because there was a "typo"), that I cannot rely on what the county told me I could do, and that I cannot rely on the things the county has sent me in the mail -- when all I am trying to do is to subdivide 10 acres of my land, immediately adjacent to the town of Hamilton to put lots in trust for my three kids. We have been litigating for two years. I am completely outraged at the punitive nature of the county towards some landowners.
The position is now that I can do my subdivision, but I have to wait until December 2008, when the very ordinance they are enforcing against me said I could do it in since 2002 (the "typo") -- after I spent about $130,000 (plus) to get a preliminary plat approved, drilled wells that they asked in writing be drilled, and found perc sites, that they asked me to find in writing--(there is already public sewer on my property but they arbitrarily will not let me use it.)
I think the county has spent at least half a million dollars litigating just this issue, which has no public benefit, only punitive towards me. Many other people in the similar situation were allowed to go forward. And then they will not give me documents that are public documents that may show how I was wronged.
And there have been other acts of reprisal by the County.
I think my litigation is in the public interest to force Loudoun County to stop this targeting of certain landowners, and this selective enforcement of laws, and making up restrictions that only apply to a targeted landowner. I would like to see some change and think it needs to start at the top. Public trust starts with fair and consistent enforcement of all laws.
No one is looking at the outside attorneys fees and as I said in an earlier post, they have it great--a client who does not question its bill, with an unlimited budget, and they take full advantage, spending whatever amount of time it takes to wear the opponent down or to win. In my case alone, I think they will have spent a half million dollars. For what? they have made up laws to try to stop me, and this is wrong.
Posted by sallymann
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Someone should FOIA the county to find out how much money they spent on lawsuits against private individuals. The Madisons brought a counter claim against the county, after the county sued them under the guise of maintenance. The structure was an abandoned stripped shell missing half of a roof. Maintenance is common ordinary repair that doesn't add value. The county seems to be making up rules for the Mann family for some undisclosed reason. The zoning administrator describes herself as "very competitive" then proceeds to harass certain peolpe. The Miller family, with the blue roof, had a permit from the county to do the work, then after the fact, zoning decided they did not like the color blue. Meanwhile, another Goose Creek resident installed a green asphalt roof and a deck without any prior approval. When you start to know the real details, these folks have asked for nothing other than what they are entitled to under the law. The taxpayers should demand to know how much of the legal budget has been utilized on this type of litigation. My guess it exceeds more than half of the entire annual legal budget. Also, why is it that others in historic districts do whatever they want, without reprisal, and the good old boys look the other way?
Posted by byebyeburton
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When you start to know the real details, one will side with the County.
Bring PROOF of allegations , or quit crying and deal with it.
The newspaper reply button is not where you fight things. The courtroom and the burden of proof they employ there...is.
Posted by 10feettallandBulletproof
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10 feet,
Wow, you are pretty intense. Don't like people who don't agree with you, huh? me thinks the previous poster has got a good point in these tight budget days? the ol' days of don't matter how much it costs cuz we make the rules no matter how unfair, is over.... someone needs to look at the outta control legal expenses for what we get in return for some of these "discretionary" decisions...
Posted by soulfull
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