FOIA Fighter
Walter Smith, UVA alumnus and chair of The Jefferson Council Research Committee
It was a quiet Monday afternoon in the Henrico County General District Court, and Walter Smith thought he might have the University of Virginia on the ropes. Smith, an attorney and retired insurance industry executive, had spent much of the previous three years using the Freedom of Information Act (FOIA) trying to pry open documents lending insight into UVA decision making. He had been stymied repeatedly on various grounds, including the assertion that the records he sought were exempt presidential "working papers." But this case was different.
This time Smith had asked for text messages between University police chief Tim Longo to the Albemarle County Commonwealth's Attorney Jim Hingely regarding a meeting President Jim Ryan had asked Longo to set up with the local prosecutor. The purpose: to discuss an April press release explaining why the University was withholding release of an independent report into the slaying of three football players in 2022. The local newspaper, The Daily Progress, had obtained the text messages through a FOIA request and published some of them, and Smith wanted to see the complete records. By the time he filed his request, however, he was told they no longer existed — even though, according to UVA's records-retention policy, the University was supposed to keep text and email messages for three years.
UVA attorney Robert M. Tyler took on the awkward task of explaining to Judge B. Craig Dunkum why the texts were deleted: Longo's phone, set on Apple's default setting, auto-deleted them. There were no sanctions in the state code spelling out a penalty for such an occurrence.
Dunkum accepted Tyler's argument that the deletions were not deliberate, but he pronounced himself "troubled." "If you can delete the records ... somehow, that doesn't seem right to me," he said. "It rewards bad behavior."
The judge asked Smith what remedy he was seeking.
"The court can find that the deletions were caused by negligence," Smith said, observing that UVA's records-retention policy should have anticipated the fact that many records were stored on smartphones.
After quickly reviewing the state code, Dunkum said the only penalties he could find were for violations that were "willful." He offered Smith the opportunity to conduct a more careful reading and return to the court if he found language that suggested the deletions were deliberate.
Smith was disappointed, but not discouraged. In previous court hearings — this was the fifth in front of Dunkum — the judge had been deferential to UVA's arguments. But he seemed to be coming around. He ruled in Smith's favor regarding requests for information about the Christopher Jones threat assessments and the Naming and Memorials Committee proceedings on removal of the George Rogers Clark statue. UVA has appealed both and the cases remain unresolved. Dunkum also seemed more receptive to the idea that UVA's application of the "working papers" exemption was overly aggressive, Smith says. His expression of concern last week about Longo's deleted texts seemed a moral victory, if not a legal one.
Since joining The Jefferson Council when it formed in 2020, Smith has filed hundreds of FOIA requests on behalf of the Council. Many have led nowhere, but some have struck gold. One request yielded admissions data showing racial preferences for minorities as measured by SAT scores. Another coughed up information about "Landscape," a tool that provides what amounts to an "adversity index" for use in assessing applicants. Smith's FOIA probes have illuminated how UVA officials control a dozen putatively independent university-affiliated foundations, including one that funnels millions of dollars yearly into a fund for the University president.
However, records generated by Ryan-appointed committees to discuss substantive matters — free speech, institutional neutrality, racial equity, the renaming of buildings and memorials, religious diversity — remain hidden on the grounds that they were created for the president's personal deliberative use.
It's the same logic given by state agencies across Virginia. The Virginia Mercury, for example, highlights complaints by the ACLU about the unresponsiveness to its requests for information about universities' reactions to pro-Palestinian campus protests. UVA and three other universities, reports The Mercury, "cited exemptions that allowed them to withhold information or indicated they would provide details only for exorbitant fees."
Between its academic and health-system divisions, the University of Virginia is a $5 billion enterprise. UVA's first line of defense in fending off unwanted FOIA requests is to charge hefty fees — often in multiple thousands of dollars — to anyone requesting a records search. That discourages many FOIA queries from the get-go. The second line of defense is redacting material that UVA's attorneys contend fall under one of FOIA's many exemptions. A third line of defense is deploying legal experts in FOIA law like Tyler to defend the University in the rare instance that someone mounts a legal challenge.
It is beyond the capacity of all but the most affluent citizens to persist in the face of UVA's deep pockets. Even advocacy groups like The Jefferson Council and the well-funded ACLU are hard-pressed to prevail. Fortunately for the Council, Smith is dedicated to making UVA more transparent. It has become his new vocation.
UVA creates the illusion of transparency. It livestreams Board of Visitors meetings, as required by state law — but only the Academic Division sessions held in the Rotunda, not the Health Systems meetings held at the Boar's Head Inn. In any case, the Board retreats into closed sessions to discuss the most contentious issues, usually on the grounds that they are exempt due to privacy, personnel, or legal criteria. Likewise, UVA publishes a vast amount of information, including data, on its website. But it publishes only data that serve its administrative interests, and, ironically for an institution whose most recent academic expansion is a school of data science, it resolutely keeps confidential data it doesn't want to share.
Of all the FOIA battles Smith is waging, the "working papers" exemption is the most far-reaching, with implications far beyond UVA. President Ryan delegates many important issues to task forces and committees, which write up policy statements or recommendations to be acted on. The University Counsel's office construes their deliberations as "working papers" of the president, thus exempt. The free-speech committee, for instance, collected testimony, held wide-ranging discussions in multiple sessions, and worked through multiple drafts before publishing a final statement. Smith's efforts to obtain the testimony and documentation were denied.
The proceedings of groups appointed to craft University policy for statements of institutional neutrality, racial justice, and religious diversity are similarly inaccessible. All University officials allow the public see are the presidential orders creating the groups, their final work product, and whatever barebones updates they provide along the way. These work groups go to the heart of the University's mission yet, even though UVA is a state agency, the public sees only what the Ryan administration allows it to see.
One reason Smith suffered setbacks early on was his ignorance of FOIA law, which he has had to learn from scratch, and his lack of detailed working knowledge of the UVA bureaucracy, its working parts, and how they are interconnected. In trying to shake free a 2018 campus opinion survey, for instance, didn't learn the difference between the Institution for Research and Analysis and the Institutional Review Board, both of which oversee research at UVA, until after he argued his case.
"I never wanted to know this much about FOIA and the IRB, and all elements of UVA trickery to avoid disclosing things they are legally required to," Smith says. "The average citizen does not stand a chance against any public institution that wants to make it hard."
James A. Bacon is the founder of Bacon’s Rebellion and a contributing editor with The Jefferson Council.
