Anti-Freedom of Information Bill proposed by Virginia
Beach's lawyer to circumvent adverse court decisions passed over for a year in
HB 900, legislation that many felt constituted an attack
on the public's right to access public records and proposed by
former State Sen. Wiley Mitchell was buried by a house committee for at least a year without
Editor's note: I've known
former State Sen. Wiley Mitchell a long time as an honorable, aggressive
politician, unafraid to speak his mind. His proposal to limit
the powers under the current Freedom of Information Act was the
result of his legal encounter with PETA in a Virginia Beach court
case and created a firestorm of protest across Virginia. The
proposed change was deferred until 2003 Tuesday by the General
Assembly. Mitchell called VNS to explain:
Mitchell defends proposed FOIA changes
"I got so
infuriated by what PETA was doing, so frustrated by the fact that
there was no remedy for a public agency (to combat FOIA requests)
that I sat down at home and tried to draft a piece of legislation
that would provide some form of relief (to government agencies
under FOIA attack).
"I didn't consult
anyone. I take full blame for it. I forwarded it to the Virginia Beach (legislative)
delegation and none of them had any comment. I sent it to
the attorney for the FOIA advisory council and got no
comment. I told FOIA advocates (Frosty Landon of Virginia
Coalition for Open Government) 'Here is a bill on how to solve the
problem. If you can figure out a better way, I'll do
it. I just want to give public agencies a level playing
| "If that kind of
legislation is Wiley Mitchell's idea of good
government, it's a good thing he retired from the Virginia
Senate," Kevin Martingayle, attorney for PETA on
Mitchell said he felt
PETA was suing for information from the Virginia Marine Science
Museum (VMSM) Foundation's board not to get information "but
to disrupt. They want to find out who our supporters are so
they can intimidate our contributors.
current law, a public agency is obligated to produce public
records without limits on public records. There is nothing
that gives a public agency protection except to go to court for
more time to respond and charge for the time to put public records
"That is a small
consolation to pay for your time (in assembling records).
"Money is not an
impediment to someone like my friends at PETA. They are not
impaired by the money it takes to get information. What they
were after in this case wasn't information, but to stop a project
- not the dolphin tank, but a replica of the Norfolk Canyon.
sympathy for people like Morris Rowe when they want to use the
FOIA to get info, but not when they want to use it to stop a
"I don't want to
jeopardize the free press, but what the current law does is give
PETA a hammer to beat the museum over the head and now they are
going after the foundation. (Mitchell is the attorney of record
for the VMSM Foundation in an ongoing suit against the
Tuesday's action of continuing the proposed bill until next year,
"is about as good as I could have hoped for."
The anti-freedom of information bill was proposed by
Mitchell, who said he acted on his own, after the People for the Ethical Treatment for Animals (PETA)
spent thousands of dollars on a court suit to obtain records
that should have been readily available for public inspection.
Circuit Court Judge Frederick Lowe found the city had
violated the state Freedom of Information Act (FOIA) and ordered the City
Council to pay PETA's legal fees.
A decision on a second suit is pending in Judge Lowe's
It was brought out during the legal proceedings that, like
common crooks covering wrongdoing, city employees destroyed documents
ordered turned over to PETA and had lied on the witness stand.
Smarting from the judicial rebuke (the city has not won a single
case in court this year), Mitchell felt that if he could get
legislation weakening the public's access to government information, it
could level the playing field in future court actions (several others of which may be pending).
Mitchell thought his ole boy network in the General Assembly
a bill that the city could use to frighten off future requests, such as
government documents and information. Harry R. (Bob) Purkey (R)
introduced the legislation Jan.
By the time it came up for committee action Tuesday
morning, it had generated a firestorm of opposition across the
Commonwealth from common citizens to public interest groups to the
media. The House General Laws Committee quickly and unanimously
voted to carry the bill over until next year.
Lawyer Kevin Martingayle, who successfully represented
PETA in its FOIA suit against the city over plans to built a $55M fish
tank to house and display captive dolphins, said, "What this legislation is intended to do is to
create a weapon that government can use against organizations and
"Citizens should not have to justify why they
want public records. Remember the people own the government and
all its property, not vice versa."
Several people said Tuesday that Purkey is going to have
to explain more fully his position on his part in introducing such citizen