Judge awards fees in FOIA case

Published 6:37 pm Friday, December 3, 2021

A Suffolk Circuit Court judge has awarded just over $19,500 in attorney’s fees and costs to a woman who he previously ruled was denied access to a July School Board retreat in violation of the state’s Freedom of Information Act.

During a Nov. 23 hearing, Judge Matthew A. Glassman awarded $17,520 in attorney’s fees and $1,983.56 in costs to Dr. Deborah Wahlstrom, who he ruled Sept. 20 “was denied free entry” into the July 22 retreat at the College and Career Academy at Pruden.

Deborah Collins, who along with School Board attorney Wendell Waller represented the board, argued that Wahlstrom was not entitled to an award of attorney’s fees for several reasons. In a memorandum of law brief filed Nov. 9 before the court, Waller wrote that Wahlstrom “was not entitled to an award of attorney’s fees and costs as she has not substantially prevailed on the merits of the case.”

The brief also stated that an award of attorney’s fees and costs was unjust for additional reasons: “the violation did not affect the substance of any action taken by the School Board, the violation did not prevent the public’s knowledge of the people’s business, the School Board made good faith, reasonable efforts to conduct its business in the open and in view of the public and the School Board relied on an opinion and guidance letter by the Virginia Freedom of Information Advisory Council.”

Responding to that brief, Martingayle responded with his own memorandum of law brief Nov. 12, saying the primary issue presented in Wahlstrom’s complaint “was her exclusion from a ‘retreat’ conducted by the Suffolk City School Board on July 22, 2021” and “was not only removed under threat of arrest from the room where the retreat was to be conducted but was also deprived of any opportunity to see the proceedings, whether in person or otherwise.”

Collins and Waller argued in court and in briefs that it provided a place for the public to view the retreat that met FOIA requirements, and that it was Wahlstrom’s behavior that caused her to be removed by Suffolk Police from CCAP and not able to watch the livestream of the meeting from the school’s lobby.

In his Nov. 23 ruling, however, Glassman said that the court finds that Wahlstrom indeed “substantially prevailed on the merits of the case” and said not awarding her attorney’s fees and costs would be unjust.

The board voted 6-1 at its Nov. 4 meeting to appeal both the ruling and the award of attorney’s fees and costs to Wahlstrom to the state Supreme Court, which recently heard the board’s appeal in another FOIA case involving the board and one of its members, Sherri Story, who was also the board’s lone vote against appealing the most recent case.

Glassman said that even taking into consideration COVID-19 protocols, the meeting room for the retreat had adequate space for the public and noted that FOIA needs to be liberally construed. He said the meeting room could have accommodated at least a few members of the public.

In his September ruling on the case, Glassman agreed with the board that CCAP was the only suitable venue for the retreat due to concerns with technology and that no other spaces would be able to accommodate all of the needs for the retreat. However, he said the plan for the retreat “could have been altered to accommodate the public in the room at CCAP.”

Collins had argued that the access was provided to the public via a livestream in the CCAP lobby and that it was better than the access in the room because the public would have been viewing the backs of the participants had they been in the room.

Glassman said in his September ruling that the video feed was limited to the perspective of the person controlling the video feed and that members of the public should be able to choose what to see and hear by being in the meeting room. He said that livestreaming “is suitable for overflow” but that anyone who thought it was important enough to view the meeting in person “should be given first priority.”

On the first day of the trial, Glassman also agreed with Collins that there is no requirement in FOIA that a meeting has to be held in a specific spot within a location.

As a result of what he said was the court’s determination of an open meeting violation, Glassman ruled that the court “permanently enjoins” the board from designing a retreat “that bars the public from entry or being physically present in the venue in which any such retreat is conducted.”

He also ruled in September that “the Court does not find the evidence sufficient to impose individual penalties on defendants Judith Brooks-Buck or John B. Gordon III because their actions were not willful and knowing violations of the Virginia Freedom of Information Act.”