Henrico judge rules that state lawmakers cannot be individually … – Roanoke Times


A Henrico County circuit judge has ruled that state lawmakers are not individually subject to the state’s Freedom of Information Act, agreeing with an argument by attorneys for state Sen. Siobhan Dunnavant, R-Henrico, that only a “public body,” not an individual public official, has a duty to respond.

“While Senator Dunnavant is indeed a public official, she is not a public body within the meaning of FOIA,” Judge James Yoffy wrote in a June 14 ruling. He ruled that a FOIA request for some of Dunnavant’s records was not valid because the state’s FOIA law for records “relates only to requests made to public bodies.”

For years, Virginia residents haven’t always known where to go to submit FOIA requests and often don’t know how various governments are structured. The ruling could add to confusion about how to request records from elected officials.

Megan Rhyne, executive director of the Virginia Coalition for Open Government and one of the state’s foremost authorities on FOIA, said she had never before heard the argument put forth by Dunnavant’s lawyers, which the judge agreed to.

“The very foundation of FOIA’s records provisions is that it applies to everyone in government, not just the entities as organizational wholes,” she wrote in a blog post. “The logical extension of the court’s ruling is that no individual member of a board of supervisors, city council, school board, etc., would be subject to FOIA’s records provisions. That is simply not the way FOIA has been understood and applied for nearly 50 years.”

While the open-meeting rules within the state’s Freedom of Information Act apply to public bodies, the records rules clearly apply to individual government officials, Rhyne wrote.

For example, the law says, “The General Assembly ensures the people of the commonwealth ready access to public records in the custody of a public body or its officers and employees.”

Brian Davison, a software developer from Loudoun County, made the FOIA request by email to Dunnavant on Jan. 17 after some of his comments on her “Senator Siobhan Dunnavant” Facebook page were deleted, according to his court filing. He sent the request to her Senate email address.

Davison said he has been trying to educate government officials that they must save social media content as a public record. He said he’s worried that if the content isn’t saved, government officials could conduct public business secretly. For example, a lobbyist could lobby a senator through Facebook messages and the conversation could never be made public, he said.

Dunnavant didn’t respond to his FOIA request until 17 days after he made it, when her lawyer said no records existed, according to the complaint.

Davison said he filed the March 6 complaint in court because he wanted a judge to find that her Facebook content was indeed a public record, and find that she violated the law by not responding to his FOIA request within five days, which the law requires.

Dunnavant’s lawyers are William Tunner and Michael Matheson of ThompsonMcMullan P.C. in Richmond. They argued that Facebook content was not a public record because it was not “prepared for or used in the transaction of public business,” as required by law.

They further argued that Davison couldn’t take action in court against Dunnavant because “Dunnavant is not a ‘public body.’ ”

They also introduced a new argument about who should be handling FOIA requests.

The General Assembly in 2016 passed a law requiring public bodies to designate a Freedom of Information Act officer to make sure officials understand the law. The FOIA officer can also handle record requests for a government agency.

But Dunnavant’s lawyers said it is the FOIA officer’s duty to respond to public record requests for a body.

“If a public official must be named, the designated FOIA officer is the real party in interest, because it is the FOIA officer’s statutory duty — not Dunnavant’s — to respond to requests for public records,” they wrote.

They noted that the Senate of Virginia has designated Clerk Susan Clarke Schaar and Assistant Clerk Rose Ramsey as its FOIA officers.

Rhyne, with the Virginia Coalition for Open Government, said that’s wrong. While the FOIA officer may be the person who responds to a request, nowhere in the statute does it say that the FOIA officer must be the sole person who responds.

Del. Jim LeMunyon, R-Fairfax, sponsored the bill that changed the law to add the FOIA officer requirement.

“I can tell you unequivocally there was no intent to make that person the exclusive person that a FOIA request would need to be directed to,” he said.

Additionally, Rhyne said, if Dunnavant is talking about her work as a senator on her Facebook page, then that’s public business and qualifies as a public record.

The Library of Virginia advises government agencies to retain social media posts if they are public records — meaning they were received in the transaction of public business such as receiving comments about the agency or its programs. That also applies to elected officials, according to the library.

The question of whether Dunnavant broke the law by not responding within five days or whether she broke the law by not turning over public records was not resolved.

Because Yoffy ruled Dunnavant couldn’t even be subject to an FOIA request in the first place, “the court need not delve into any further analysis of the elements of Mr. Davison’s claim,” the ruling said.

Dunnavant said that after receiving the FOIA request, her office sent it to the state’s Division of Legislative Services.

“During Senate orientation we were advised if we received a FOIA request to send it over to DLS and they would handle it,” she said in an email. “We were not aware until we received further correspondence from Mr. Davison that a response had not been sent.”

Although the judge did not rule on whether he believed her Facebook posts were a public record, Dunnavant said they are not. She said the Virginia Freedom of Information Advisory Council, which offers guidance and advisory opinions on FOIA, concurred with her.

“No official government business is conducted on my Facebook page. Government business is done by the governing body, the Senate,” she wrote in her email to the Richmond Times-Dispatch.

“Senate records are available through FOIA and the clerk of the Senate. My Facebook page is solely a political page. No tax dollars are used. No public funding is used. It was set up during my campaign using my campaign logo, slogan, Twitter tag, etc. I use it to promote political events, my own candidacy, express endorsements and promote fundraisers.”

The definition of a public record in state law is not dependent on whether accounts or devices are subsidized by tax dollars or public funding, however. The content is what matters.

“The medium upon which such information is recorded has no bearing on the determination of whether the recording is a public record,” state law says.

Davison filed a motion asking the judge to reconsider. The Senate clerk, meanwhile, contacted the Virginia Freedom of Information Advisory Council.

“The FOIA Council advised that Senator Dunnavant is the correct person to whom your FOIA request should have been directed,” Schaar wrote to Davison in a June 21 email. “As we advised previously, this office is not in possession of any social media records of any members of the Senate nor are we required to possess copies of same.”

The FOIA Advisory Council was already scheduled to study technology issues this year, including how public records are handled when they come via email, text message or social media site.

LeMunyon said the council will review the judge’s ruling in this case at its Aug. 14 meeting.

Aside from all this, it’s not easy to get records from a member of the Virginia General Assembly. The lawmakers created an exemption in the Freedom of Information Act for “working papers” of themselves or their legislative assistants. That means they can already deny many FOIA requests because they’re not required by law to turn over the documents.


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