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Loudoun FOIA case: Judge to rule what's public and private
Circuit Court Judge Thomas D. Horne has not yet ruled on two Freedom of Information Act cases that came before him Jan. 28 involving questions of alleged influence on supervisors' land-use decisions. But, he cautioned, "I am not ruling that every record in a public official's possession is a public record."
District Court Judge Dean Worcester ruled late last year that Board of Supervisors Chairman Scott York (I-at large) and Supervisor Jim Burton (I-Blue Ridge) must turn over to Sally Mann all e-mails from their home computers that they had withheld from her FOIA requests on grounds that the e-mails in question are personal, not public.
York and Burton, and Supervisor Lori Waters (R-Broad Run) in a third FOIA request from Mann, appealed those decisions to Circuit Court.
Mann, of Hamilton, has brought the three FOIA cases and a challenge to the legitimacy of the Hillbrook Agricultural District. She charges that the three supervisors have corresponded with seven named individuals who, she claimed, have lobbied against her application to subdivide and develop 35 acres on Harmony Church Road, south of Hamilton.
Assistant County Attorney Milissa Spring argued in November in the Waters case, before Worcester, that public officials still have private lives, and that the personal part of their lives is not subject to public disclosure.
Worcester differed: "It does not meet the purpose of FOIA that the official can decide what is public or private."
Horne said he had to "respectfully disagree" with Worcester's broad interpretation of FOIA. "The General Assembly never intended that every record in the possession of a public official is a public record subject to FOIA," he said.
The issue now, he said, is "how does the court define" personal and public.
Mann, formerly but not currently licensed to practice law in Virginia, represented herself in the appeal before Horne. She conceded that her request was for "public records" but argued that any correspondence between a public official and a constituent is a public record.
Dean Settle, of Lovettsville and one of the seven named correspondents, testified that he had intentionally put the name of Chris Curto, a contact at the Republican Party of Virginia, on the forwarding list of an e-mail he sent Burton, "just to see how far [Mann] would go."
Mann included Curto on the list of the seven individuals corresponding with the supervisors. "I call it a trap door," Settle said later.
Curto, Settle testified, "is in no way, shape or form known to Jim Burton."
Settle later described himself as not an activist but "an individual with loud opinions."
Mann also argued that York's office had overcharged her for complying with her request for documents.
York's aide, Keith Nusbaum, testified that conducting a personal search through 24 binders of e-mails to the Board of Supervisors -- as he was ordered to do by Worcester in court on Oct. 10 -- took him 18.5 hours.
Mann argued that those were public records and she sorted through them herself in far less time. Horne questioned whether she should be charged for a search of public records.
Worcester said in court on Oct. 10 that Mann would have to pay for the search of the 24 binders of printed e-mails, and for a search by a more technologically proficient person than Nusbaum of the e-mails that had been deleted after six months on the county server.
Spring argued, for the county, that the state's FOIA law does not address or define personal records.
Mann argued that a public official should not be the party to decide what the public can and cannot see. "You have to err on the side of handing over the documents," she said.
York and Burton, Spring countered, have already "provided Mrs. Mann with all public documents. They did not cite an exemption because personal documents are not covered under the law. This would be an open door to every bit of personal information in any public official's possession. "
Horne will issue a written ruling.
Contact the reporter at ssollinger@timespapers.com
It it about time someone has put the time and energy into the county's handling of FOIA requests. It is absurd that a supervisor can determine whether or not he/she releases a public record or makes the determination that it is or is not public. Thank you, Ms. Mann, for trying to fix a hole in the legislature.
Posted by byebyeburton
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Look, I'm all for transparency in county government. Your post above is either intentionally misleading, or rest on a number of gross assumptions.
Basically, I think anything and everything that discusses county business before the supervisors is a no-brainer. It should automatically be open to every taxpayer. And so far, aside from one fabrication to the counter, it has been.
The proof above that Ms. Mann went after e-mails from Mr. Curto, Mr. Miller, and Ms. Buckley - all based on a CC'd portion of an e-mail to Mr. Burton (and placed there as bait by me) is vivid proof of the large assumption by Ms. Mann that these individuals MUST have sent Mr. Burton e-mails that she has not recieved yet.
I'll concede immediately that Miller and Buckley may well have sent Burton e-mails of their own concerning county issues, and I'd say that if they did, she'd have gotten a copy of any of those e-mails already, because Sally DID get a bunch of e-mails that met her request. But she's still searching because she never found an e-mail from Mr. Curto. I can tell you without reservation that Mr. Curto does not live in Loudoun, does not have issue with any actions before the BOS in Loudoun, and does not know, nor has ever written to Jim Burton. The ONLY reference to Burton was that I included him in a list that was a CC on an e-mail that Mr. Burton also recieved at his Aldie e-mail address. The assumption was all Sally's. The reality is that she is intent on proving that an e-mail from Curto to Burton was not revealed to her...when in fact no such e-mail message ever existed. This places ALL of the suspected e-mails in the same situation. It can be readily argued that all of the "missing" e-mails never existed, and they fall in line with the proof that the first one was definitely non-existant fiction.
Posted by 10feettallandBulletproof
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This is so ridiculous. I am one of the people alleged to have lobbied against her land use case. I could care less about her case and have not discussed it any way shape or fashion with any supervisor.
This all goes back to the larger political vendetta of the property rights crowd against York, Burton, and Waters. I'm glad Judge Horne seems to have a better understanding of the differences between public and private documents.
Posted by jeffwolinski
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There were emails withheld -- and "missing" because they were not handed over, not because they did not exist. The poster above is confused.
Anyone who has ever been adverse in any way to the County knows how they stonewall you and overcharge, and they do not tell the truth either! They just delete or destroy what they do not want anyone to know, or simply ignore your FOIA and refuse to give you anything, or else they gin up a huge "bill" to retrieve documents, and make it too expensive to get the simplest of things.
Once Milari Madison was told it would cost her $25,000 to search to see if any other demolition permit had ever been revoked in the County, when they all knew that had never happened before, but was just "special" treatment for her (as was the estimate of the cost of the search.)
They are supposed to keep documents for 3 years, but staff deletes at will what they do not want to archive, and after they delete they claim it is gone forever, when other technology people say deleted email should be recoverable... what is the truth?
There is a reason this is in Circuit Court, the County has been abusing taxpayers for too long.
Posted by soulfull
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You can use your name Sally. The [horsehockey] still reads the same.
Or Ms. Shockey, or Ms. Madison, or Mr. Roherty...whichever one of the Cheerleaders that attended court that day for Ms. Mann.
I DO know, and I am not at all confused. Because, as you well know, almost a full half of the remaining seven names was a ploy, and you fell right into it.
You have any existing e-mails, and were standing on extremely thin ice when you entered the courtroom that day, even without calling me to testify.
As Mr. Wolinski has pointed out, and Mr. Roherty's presence there on court day enforces, this was a politically motivated move before the elections, and it's still that way today.
Roherty wanted to know more about York’s tangles than he did about Sally’s county problems ( which really do not amount to a hill of beans to anybody else in the whole County.. except Sally) so he could feed that info to Firetti, who he supported, funded and fed during the election cycle.
They did all of this thru FOIA requests and misinformation on blogs and Newspaper feedback boards that Sally and a whole host of other Profit Right groupees spearheaded.
At least my associates REGISTERED as PACs, so the money was transparent (at Vpap.org) and the purpose of the individual PACs were all announced, so there was no confusion about what each intended to do, and why.
Posted by 10feettallandBulletproof
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