Anti-Freedom of Information Bill proposed by  Virginia Beach's lawyer to circumvent adverse court decisions passed over for a year in house committee

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 further action.

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 field."

 "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's actions.

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.

"Under the 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 together.

"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.

"I've got 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 project.

"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 city)."

Mitchell said 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 court.

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 could introduce a bill that the city could use to frighten off future requests, such as PETA's,  for government documents and information.  Harry R. (Bob) Purkey (R)  introduced the legislation Jan. 9.

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 ordinary citizens.  

"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 'unfriendly' legislation.