Breaking News: Court Dismisses FOIA Petition for "Improper Service," but Leaves Door Open to Hear it Again
Petitioner Theodore Marcus plans to refile the petition after following Virginia's civil process procedure.
By Adele Uphaus
MANAGING EDITOR AND CORRESPONDENT
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A Spotsylvania General District Court judge on Tuesday agreed to dismiss without prejudice a petition seeking the release of records related to the Riverbend High School varsity swim team—leaving the door open for petitioner Theodore Marcus to refile the suit and have it heard within a week of filing it.
Attorneys John Thomas and Evan Tucker with the law firm McGuire Woods were in court Tuesday on behalf of the respondents, who include the Spotsylvania School Board individual members Lisa Phelps and April Gillespie, and superintendent Clint Mitchell.
Marcus’s petition asked the court to compel the respondents to produce emails and text messages between Phelps, Gillespie, former superintendent Mark Taylor, and former Riverbend principal Xavier Downs concerning the events leading up to, including, and following a contentious December 20, 2023, meeting with swim team coaches, parents, and school administration. It argues that the records are being withheld in violation of Virginia’s Freedom of Information Act.
At Tuesday’s hearing, Thomas argued that the case should be dismissed for “improper service.” He said Marcus did not properly follow the process laid out in Virginia Code for serving notice of the petition, mainly because he served the petition himself and did so via email.
Virginia Code states that anyone who is 18 or older or “who is not a party or otherwise interested in the subject matter in controversy” can serve process. Thomas said that since Marcus is an interested party in the suit, proper service needs to be carried out by the Sheriff’s Office or by a third-party civil process server.
Marcus, who is a federal attorney but is not licensed to practice law in Virginia, said he consulted with the Spotsylvania General District Court clerk about how to serve the petition. He said that though he is an interested party in the suit, he is also representing himself.
Thomas also said that Virginia Code requires petitions such as Marcus’s to be accompanied by an affidavit showing “good cause,” or arguing that substantial grounds exist for the court to take action.
Reynolds agreed with Thomas that Marcus’s petition was improperly served. She said she would continue the case so that Marcus could properly serve the petition and moved to schedule a trial in December.
Marcus, however, asked Reynolds to dismiss the case immediately without prejudice, which she agreed to do.
He told the Advance that he intends to properly serve the petition in the next few days, after which Virginia Code requires that it be heard by the court within seven days.
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A bit silly of the SCPS lawyers to sit there and argue that Marcus didnt file properly,
seems like a minor detail that could have been waived, when their own clients won't follow the law as it relates to FOIA. The county continues to waste taxpayer money giving it all to lawyers instead of improving the schools. Glad he will be refiling, they need to be held accountable.
It's both a shame and a problem that a citizen needs to jump thru all of these hoops merely to have access to information that they should have anyway.
I mean, if it's that much trouble for a trained attorney to have access to this info, what chance does an everyday citizen have?
Still, glad to hear he's not giving up.
Truly, democracy dies in darkness.