Legislator joins conspiracy to curb public access to public records

Virginia Beach's outside hired legal gun, former State  Sen. Wiley Mitchell, who has failed in court to successfully defend against a suit charging the city had violated the Freedom of Information Act (FOIA), has gone to his ole General Assembly buddies to get through legislation what the city couldn't in court.

HOUSE BILL NO. 900 Offered January 9, 2002 Prefiled January 9, 2002
A BILL to amend the Code of Virginia by adding in Chapter 37 of Subtitle 2 of Title 2.2 a section numbered 2.2-3715, relating to the Freedom of Information Act; remedy for requests intended to harass.
Patron-- Purkey ----------
Referred to Committee on General Laws ----------

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding in Chapter 37 of Subtitle 2 of Title 2.2 a section numbered 2.2-3715 as follows:

2.2-3715. Protective orders.

Any public body subject to the provisions of this chapter may petition the circuit court in the city or county in which the public body is located for a protective order relieving the public body in whole or in part from its obligation to produce or provide access to public records sought by a particular requester. The court shall grant the petition and enter such an order if the court finds that the request for access to public records is unreasonable, not made in good faith, or motivated primarily by an intent to abuse, harass, or intimidate the public body. In entering the order, the court may require the requester to pay the reasonable attorney's fees incurred by the public body in obtaining the order.

Del. Bob Purkey is doing Mitchell's bidding  in trying to pass legislation that would make it more difficult for the public to sue government agencies for information under the FOIA.

Mitchell's change would allow the city or public body to petition the court for a protective order against what the city might feel is a harassing suit.  It would also allow the court to award attorney fees to the public body.  Mitchell could not be reached for comment Monday.

One civic activist Monday said, "This bill, if passed, will give government carte blanche power to take the public's business that much further into the abyss of  secrecy and darkness to the detriment of all taxpayers.

"Without doubt it could be the most dangerous, taxpayer unfriendly legislation in history."

The action comes shortly after Mitchell lost a devastating legal fight over the People for the Ethical Treatment of Animals' (PETA) suit to obtain documents and information about a proposed fish tank at the Virginia Marine Science Museum (VMSM) to house and display captive dolphins.

PETA's was a bitter challenge that saw City Manager James K. Spore, VMSM director Mac Rawls, and Police Chief Alfred (Jake) Jacock conspire to send undercover policemen into civic meetings for the purpose of conducting political spying so the city could oppose PETA's action.

After PETA filed the suit and Judge Frederick Lowe ordered the city to turn over all files to the public interest group, city officials reportedly destroyed documents to keep information secret.

Lowe ruled against the city and ordered the city to pay PETA's legal fees - still not paid as of Monday.

A second suit is ongoing in which PETA is trying to get records VMSM claims belong to a private foundation that is its fund-raising arm.  

In a hearing, however, it was revealed that the records were maintained by city employees, on city property, in city files; that no non-city employee member of the foundation had independent access to any of the foundation's records or assets except through the city.

PETA's lawyer, Kevin Martingayle told the court basically that there was such a commingling of files and documents that they were one and the same and should be made available to PETA under the FOIA.  

This is what the Virginia Coalition for Open Government says about  HB 900

Purpose: Overturns 33 years of open-government rules in Virginia: 

Permits government to get a court order to stop "harassment" by citizens trying to obtain government information; 

if request for records is "unreasonable," citizen can be forced to pay government's legal bills. 

(Note: FOIA already prohibits "fishing expeditions" for non-specific records, permits government to seek extended compliance time if record requests are complex, and allows government to charge for copying and search time). 

We strongly oppose this measure.

A decision on that aspect of the suit against the city (again represented by Mitchell) is pending in Circuit Court.

Apparently so chagrined that the city couldn't win in court, Mitchell took the case to his old buddies to slip through legislation to achieve his means.  Del. Purkey introduced the bill (see above) on January 9.

Martingayle, strongly opposing the bill, said, "If the city or the foundation's positions had been vindicated and the courts had ever concluded that PETA had abused the law, then this proposal would make more sense.  But PETA won over and over again.

"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."

For a recap of what Virginia Beach city government has already done in attacking the people who paid its bill see:  Spying