FOIA actions dismissed

Published 10:30 pm Saturday, September 14, 2013

A General District Court judge has dismissed four actions brought by a city critic regarding the city’s compliance — or noncompliance, the plaintiff said — with the Freedom of Information Act.

Saying he found “no intentional and/or willful violations of FOIA on the part of the city,” Judge Alfred W. Bates III dismissed the actions. Plaintiff Christopher Dove says he plans to appeal.

Dove argued the city failed to provide promptly a plat for the Foxfield Meadows development near his home, did not provide procedures used in the Planning and Community Development Department for tracking and storing records, denied access to papers that were falsely labeled working papers and, in one case, provided more records than he had requested and charged him roughly $25 for the excess records.

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But Bates said during the Sept. 4 arguments in court that it seemed the city had tried to provide the records requested.

“Sometimes people make mistakes, and sometimes it’s just a matter of being a human,” Bates said. “You just have to temper that with a touch of reason, and that’s what I see as somewhat lacking here.”

In the first case, Dove claimed he requested the most up-to-date, authorized plat for Foxfield Meadows during a visit to the planning department’s office. Employees there asked him to fill out a form, which is not required by the Freedom of Information Act.

City employees said they use a form to help clarify which records the requester is seeking.

The same day, Dove was provided a copy of an unauthorized final plat, not the most recent authorized plat that had existed since 2010.

Deputy City Attorney William Hutchings, in court, chalked it up to a miscommunication.

“It’s clear what Mr. Dove had in his head was not communicating to the employee,” Hutchings said.

Bates agreed.

“Couldn’t some of this have been avoided if you put your request in writing?” he said to Dove. “When you do it verbally — orally — you run the risk of someone misunderstanding. Don’t you think you have some responsibility?”

In another action, Dove said the city didn’t provide procedures used to handle, track and store records in the planning department. However, the city says no such written procedures exist, and the Freedom of Information Act does not require governments to provide documents that don’t exist. City employees said they merely use guidelines published by the Library of Virginia on the storage of records.

Dove also contended some papers he requested from the planning department could not be considered city manager’s working papers because they existed in the planning department. Hutchings, however, argued otherwise and provided the sealed documents for the judge’s review. Bates agreed with the city.

In the final action, Dove requested minutes for a four-year period showing that the City Council held a closed meeting and then immediately reconvened in an open meeting to certify the closed meeting, as required by the Freedom of Information Act.

The city provided the records for every closed meeting in that time period, but Dove argued most of them do not show an immediate reconvening. City Council typically holds its closed meeting after a work session and then does not convene again until the beginning of its open session.

City Clerk Erika Dawley testified she “was not about to differentiate between what is immediate and not immediate” and provided the records for every closed meeting.

“They provided records that exceeded my request and charged me for it,” Dove said.

“I haven’t heard any evidence they exceeded it,” Bates responded. “I heard your opinion they exceeded it. She thought she was being responsive. I’m just not convinced that wasn’t an appropriate response.”

Hutchings summed up the city’s arguments near the end of the court hearing: “Mr. Dove is trying to trap city employees. At the end of the day, the city has tried as hard as they can to give good customer service.”