When Virginians are denied access to public documents, they sometimes must take their fight to court.
Three recent cases — two in the Virginia Supreme Court, one in the U.S. Supreme Court — highlight the public's right to information under the Freedom of Information Act. One involves two out-of-state men denied documents because they were not Virginia residents. Another is a request for an officer's arrest list and personnel history. The third is about whether a judge had the right to seal court exhibits after a request from this newspaper.
"I think Virginia has a very weak enforcement history..." said Megan Rhyne, executive director of the Virginia Coalition for Open Government. "If citizens are denied records the only choice they have is to go to court. So when FOIA cases go forward they are significant because there is a chance for a neutral third party to look at their complaints."
McBurney v. Young
The U.S. Supreme Court heard oral arguments in February in a case involving two men who were denied access to Virginia court records because they were not Virginia residents.
Mark McBurney, of Rhode Island, was seeking a petition for child support after his former wife had defaulted on payments, according to court documents. His petition was eventually granted, but he was delayed nine months in collecting child support payments.
Because of the delay, McBurney submitted a FOIA request to the Virginia Division of Child Support and Enforcement requesting emails, notes, files memos and any other documents that related to his application for child support. His request was denied in part because he was not a Virginia resident.
Roger Hurlbert, of California, was requesting real estate tax assessment records for his clients. Hurlbert was looking for information on properties in Henrico County when his FOIA was denied because he is not a resident of Virginia, according to court documents.
"All 50 states have public records laws," Deepak Gupta, a lawyer for the plaintiffs, said during oral arguments. "Forty-seven of those states make access available to residents and nonresidents on equal terms. Virginia, by contrast, enforces a discriminatory access policy.…"
Virginia's Freedom of Information Act states that "all public records should be open to inspection and copying by any citizens of the Commonwealth."
Early in the hearing Justice Antonin Scalia argued in favor of keeping the access within the state, and gave his interpretation of the purpose of the sunshine laws, according to the hearing transcript.
"The purpose of it was not to enable people to get information, per se; it was to enable people to see how their government is working, so that they could attend to any malfeasance that is occurring in the process of government. It seems to me entirely in accord with that purpose of these laws to say it's only Virginia citizens who are concerned about the functioning of Virginia government and ought to be able to get whatever records Virginia agencies have. What's wrong with that reasoning?"
Virginia Solicitor General Earle Getchell argued in part that a nonresident seeking the documents could hire a Virginia resident to obtain them, noting that under the law residents are not supposed to be questioned about why they are requesting the documents.
A ruling is expected by June.
In February the Virginia Supreme Court heard a James City County case involving a FOIA request for a police officer's arrest records as well as his personnel record.
Adam Ewing submitted a FOIA request to the police department in December 2011 seeking criminal incident information from 2011 related to Officer Ryan Shelton, the names of people Shelton arrested during the year, and Shelton's personnel records and conduct investigation records.
Shelton had arrested Ewing in Toano during a traffic stop in May 2011. Shelton claimed Ewing ran off the road and ignored commands to return to his car, according to the Virginia Gazette. He also said he used a "basic grasp" to subdue Ewing, whom Shelton claimed resisted when he attempted to handcuff him.
Ewing said he thought Shelton was a friend playing a prank, so he stopped his car when he got to his driveway. He said he placed his hands on the hood of his car when he realized it wasn't a prank, according to the Gazette. Ewing said he was tackled by Shelton, slammed into the hood of the car and handcuffed so tightly he lost consciousness. His FOIA request was part of a $1.35 million civil suit, claiming he was wrongfully arrested.
In response to Ewing's request, the department released 47 criminal incident reports, but refused to release Shelton's personnel records or the names of residents he had arrested, according to the court opinion. The circuit court ruled in favor of Ewing and ordered the department to release those names as well as Shelton's personnel records.
The Supreme Court reversed that ruling in part, writing that personnel records are not open to the public. The court ordered the police department to release the identities of adults Shelton had arrested.
Daily Press Inc. v. Commonwealth of Virginia
The State Supreme Court recently ruled that a judge erred when he sealed trial exhibits in a Newport News murder case.
Two years ago, Circuit Judge H. Vincent Conway Jr. denied the newspaper's request to view a court file in a murder case — including autopsy photographs of the 17-month-old victim — even though the exhibits had been used as evidence at the mother's trial two months earlier.
Conway sealed the file after the Daily Press asked to see it. He later modified his order and granted access to most of the file. But he kept the seal in place for the photographs and an autopsy report, saying the seal would remain in place until later court proceedings had been concluded.
The state Supreme Court vacated that decision, ruling that entire file should have been open under the federal and state constitutions. The court ruled that Conway did not cite a "compelling government interest" in sealing the records, a necessary step in closing off such exhibits.
"The benefits of public access to criminal proceedings have been recognized since before the Magna Carta," the Supreme Court said in a unanimous ruling. "Such access ensures that proceedings are conducted fairly ... and imparts legitimacy to the decisions of our judiciary."