Decision in FOIA Case Won't Be Reconsidered
Decision in FOIA Case Won't Be Reconsidered
State code and Bench Book now at center of controversy over technical rule involving serving notice in FOIA violation cases.
By Adele Uphaus
MANAGING EDITOR AND CORRESPONDENT
Email Adele
A Spotsylvania judge has declined to reconsider her October 15 decision to dismiss a lawsuit seeking the release of records responsive to a request under Virginia’s Freedom of Information Act.
Petitioner Theodore Marcus, a Spotsylvania resident, filed a motion last week asking General District Court Judge Jane Reynolds to reverse her ruling, recuse herself, and sanction attorneys for the respondents—the Spotsylvania County School Board, individual School Board members Lisa Phelps and April Gillespie, and the division superintendent—for making “false and improper legal and factual arguments.”
Reynolds turned down Marcus’s request on Thursday, writing the word “Denied” on the first page of the motion.
Reynolds dismissed Marcus’s original motion, asking the court to order the respondents to provide emails and text messages responsive to FOIA requests he has made with the school division since January, because it was “improperly served” by himself rather than by the Sheriff’s Office or a third-party civil process server.
However, Virginia Code does not require that FOIA lawsuits be “served.” It only states that a copy of the petition must be “received” by the party against whom the petition is brought.
According to Megan Rhyne, executive director of the Virginia Coalition for Open Government, the language in Code is “intentional” and meant to make the process simple for citizens trying to enforce their rights under FOIA.
Virginia’s District Court Benchbook contains language that goes against Code, Marcus—who works as a federal attorney—pointed out in his motion for reconsideration. It contains a sentence stating that regarding FOIA cases, “Providing a copy of a petition before filing is not a substitute for service of process after filing.”
Reynolds was a member of the committee that authored the 2023 Benchbook, and Marcus argued in the motion that she “leveraged” her knowledge of its statement requiring “service of process” to support her ruling.
On October 18, Marcus requested records—notes, memoranda, emails, and text messages—related to the drafting of the FOIA provisions in the 2023 Benchbook, to include specific contributions to that content from Reynolds.
In an October 25 response, Alisa Padden, director of legislative and public affairs for the Office of the Executive Secretary of the Supreme Court of Virginia, said there were no records related to the request for Reynolds’ input, and that emails transmitting the FOIA Benchbook content were being withheld pursuant to “Supreme Court of Virginia Rule 11:3(b)(viii) as communications among court personnel and judicial officers.”
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Hopefully the court of appeals will support the justice you seek and all future citizens when it comes to FOIA. Average citizens should not have to consult a lawyer or be experts in the law for something like this. Continuing to support you 100% and following this story, it is important for many.
We have likely stumbled into a wrestling match between the courts and the legislature over whether citizens will have the VFOIA rights intended by the statute's clear language AND legislative history, or whether courts will have a free hand to avoid the 7 day hearing mandates and help out scofflaws like our School Board. Third world problems, ie, corruption.