File cabinets. (Getty)
One of the less noticed features of the Virginia Way is the long-running tendency of the commonwealth’s leaders to conduct their decision-making behind closed doors. While the Virginia Freedom of Information Act presumes all government business is by default public and requires officials to justify why exceptions should be made, too many Virginia leaders in practice take the opposite stance, acting as if records are by default private and the public must prove they should be handled otherwise.
In this feature, we aim to highlight the frequency with which officials around Virginia are resisting public access to records on issues large and small — and note instances when the release of information under FOIA gave the public insight into how government bodies are operating.
City of Norfolk must give up juvenile victim records
In a July 30 ruling, the Court of Appeals of Virginia stated the city of Norfolk must release information about two juvenile murder victims to an attorney, and compensate her for the money she spent in her legal pursuit of the records.
Anthony Juniper was convicted of murdering his ex-girlfriend, her brother and her 4-year-old and 2-year old daughters inside a Norfolk apartment on Jan. 16 2004. Attorney Arianna Zoghi, who was representing Juniper at the time, in February 2022 requested her client’s investigative files from the city as part of a Brady challenge over law enforcement withholding records during the prosecution.
The city initially agreed to provide the records in response to Zoghi’s request, consisting of 860 pages and 23 recordings, but changed its mind, citing state law that exempts records of juvenile victims being released. Zoghi then filed a challenge in Norfolk Circuit Court, which ruled that the state law exemption only applied to juvenile defendants, and that she was entitled to recover all of her requested costs, $863.71. The city appealed.
Appellate court Judge Kimberley Slayton White wrote in the opinion that the exemptions, “refer in every instance to juveniles who have violated the law, who are suspects of violating the law, who are before the court, and who have been convicted, supervised, or committed.”
White continued that the city’s “broader reading of the juvenile records exemptions from disclosure runs afoul of [the Virginia Freedom of Information Act].”
Under FOIA law, a petitioner who wins their challenge “shall be entitled to recover reasonable costs.” Because Zoghi was advised by a court clerk to make a filing in person, and had to book a hotel to avoid getting up at 3 a.m. to drive to a morning hearing, White wrote that the “trial court did not abuse its discretion … in determining the reasonable costs allowed and in making the reward.”
The case was sent back to the circuit court for a determination of any reasonable costs and attorney fees associated with the appeal.
“I was glad to see they agreed with us,” Zoghi said in an interview, while crediting a 2021 law change that was amended in 2022 for her inspiration to seek the records. The city of Norfolk did not immediately respond to a request for comment.
Data center data not exempt
In another July 30 ruling, the Court of Appeals sided with petitioners who requested emails from the town of Warrenton related to an Amazon data center project at the corner of Blackwell Road and Lee Highway.
The Citizens of Fauquier County filed a challenge in Fauquier County Circuit Court after the town declined to produce 3,100 emails in response to the citizen group’s two public record requests in July and October 2022 regarding Amazon’s application for a special use permit in the locality.
The siting of data centers — which have proliferated in the Northern Virginia region that is home to about 70% of the world’s data centers — is a controversial topic because of the facilities’ land, water, noise and energy needs, countered with the plush tax revenue they can provide localities.
In its rejection of the citizen group’s records request, Warrenton officials cited the often-referenced state law exempting the release of records if they are “working papers and correspondence of the … mayor or chief executive office,” Fauquier Now reported. The circuit court dismissed the case, but appellate court Judge Stuart A. Raphael overturned it, saying the exemption could only be applied once to a locality, meaning the town would need to choose whether it applies to the mayor or town manager.
The case was sent back to the lower court to re-evaluate the town’s explanation of the exemption claims.
The Mercury’s efforts to track FOIA and other transparency cases in Virginia are indebted to the work of the
Virginia Coalition for Open Government , a nonprofit alliance dedicated to expanding access to government records, meetings and other state and local proceedings.
Richmond jet company wants an explanation
The Richmond Jet Center, a fixed-base operator providing fuel, lounge and maintenance services at the Richmond International Airport, filed a lawsuit against the Capital Region Airport Commission seeking answers on why a bid process for a full service fixed-base operator was canceled.
As early as November 2021, according to the Richmond Times-Dispatch , the commission announced it was considering moving business planes and small private aircraft facilities to one location. In January of last year, a request for proposals from firms to develop the facility went out, but it then revised the request to seek the services of only one fixed-base operator.
That revised RFP was then canceled.
Richmond Jet Center said it spent $250,000 developing proposals for the project; meanwhile its contracts are at risk in light of its lease at the airport expiring in seven months. The company filed a FOIA request seeking an explanation of why the commission canceled its request and the plans for the fixed-based operator services at the airport, which the commission said were exempt, leading to the legal challenge.
Unauthorized release of an UFO whistleblower’s records?
Retired Maj. David C. Grusch, who testified before members of Congress that the federal government had covered up a program that finds and reverse engineers unidentified flying objects, filed a lawsuit alleging that Loudoun County Sheriff Mike Chapman released personal information about Grusch that he shouldn’t have had access to.
In July of 2023, Grusch told the House Permanent Select Committee on Intelligence that the intelligence community and military had shown him evidence of the program. He filed a whistleblower complaint after he learned the information, and said he faced retaliation afterwards.
After Grusch testified, a reporter for The Intercept sought records from the sheriff’s office, which provided a report of a mental health incident Grusch experienced in October 2018.
In an article questioning why Grusch was able to keep a security clearance he had after the incident, The Intercept published a redacted version of the report that detailed Grusch’s wife calling the Sheriff’s Office to report he was drunk and experiencing a mental health crisis.
Grusch was detained under an Emergency Custody Order for a period of eight hours, and then requested to be held under a Temporary Detention Order for 72 hours, but was released. His lawsuit states reports and documents related to “involuntary admissions,” are exempt from release under FOIA, The Loudoun Times-Mirror reported . The Sheriff’s Office said it acted “in accordance with the law.”
Have you experienced local or state officials denying or delaying your FOIA request? Tell us about it: info@virginiamercury.com
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