One Man’s Fight For Transparency

As originally published at https://www.baconsrebellion.com

The Virginia Freedom of Information Act (“Act” or “FOIA”) has wonderfully high aspirations, ensuring the people of the Commonwealth have “ready access to public records.” All public records are presumed open, unless an exemption is properly invoked. Any exemption shall be narrowly construed. All public bodies shall make reasonable efforts to reach an agreement with a requester concerning the production of the records requested. All of that warmth and fuzziness is contained in the short title and policy — 2.2-3700 — of the Act.

All of Virginia’s public universities qualify as “public bodies,” subject to FOIA. Given the ties to the Commonwealth — the students, the alumni, the citizens, the Commonwealth itself and its monies — one might expect ready compliance with the Act. Surprisingly, one school in particular that brags about its “unequivocal” support for free expression and free inquiry hands over as few documents as it can, contrary to the broad aspirations expressed in 2.2-3700.

My FOIA journey began in 2021, soon after the University of Virginia released its “free speech” statement. I was disappointed with it, thinking it lukewarm and empty of enforcement — a fig leaf resulting from the alumni outcry arising out of the poor handling of the F UVA Lawn door.

To broadly summarize my experience, JMU, Va Tech and VCU have been cooperative, even helpful, going so far as to call me to explain why documents might not exist, or how the format isn’t exactly what I requested. Admittedly, these might only be 10 requests, while I have made hundreds of requests to UVA. UVA, however, seems determined to use every possible trick to avoid turning over documents requested. Even if I were to make all of my requests in bad faith (I haven’t), it would not obviate UVA’s duty to comply with the Act.

UVA’s main malfeasance has been the wildly over-broad interpretation of the “working papers” exemption. In UVA’s case “working papers” means documents created by or for President Jim Ryan for his personal or deliberative use. Nothing prohibits release of working papers — Ryan may choose to do so. For example, a report on the University Guides controversy has been withheld… for what reason?

UVA has asserted for over three years that all presidential or special committees were created for Ryan’s “deliberative” purpose, and that accordingly, all documents, of all those committees, were “working papers.” After three years and enough tries, finally, the General District Court and the Circuit Court have held that interpretation to be wrong. However, I have not seen any of those documents yet and believe my “victory” will be further delayed.

Section 2.2-3705.4.A.8 excludes “information held by a threat assessment team” established under Section 23.1-805. That section continues, however, to allow release where the individual subject to the assessment has committed or been charged with certain serious crimes, in which case the threat assessment team’s records are to be released, except for criminal records, health records and “scholastic records.” Obviously, the Christopher Darnell Jones shootings apply to this situation. UVA, however, has asserted that the threat records are “scholastic records” making the exception meaningless.

No normal person could work his or her way through the morass of statutes and ways of academia to withstand a UVA lawyer, trained in FOIA and FERPA (the Family Educational Rights and Privacy Act) and knowledgeable in the ways and procedures of the University, to confuse the requester and the judges. It took my General District judge a few years to quit deferring to UVA’s lawyer and the Jim Ryan affidavits about why he established his special committees.

In any event, despite the best and vigorous efforts of the UVA lawyer to convince him to allow the “scholastic records” exemption swallow the clear intent of the statute, Henrico County judges at the General District and Circuit Court levels have ordered the University to release the threat assessments. UVA’s lawyer indicated he would be filing an appeal.

There are many other ways a public body can make FOIA difficult. The body can answer slowly, feign confusion with the request, or charge exorbitant amounts to comply with the request. For example, UVA charged $793 to produce a few months of legal bills, while the AG’s office charged less than $50.

This is all a long way to ask why UVA works so hard not to disclose documents requested? The Naming and Memorials Committee has been meeting since February 2021 and was behind renaming Alderman Library, but no one can see the documents it produces? Why would Jim Ryan need to withhold whatever the seven-page document said about University Guides when so many alumni and prospects had complained? What happened to “unequivocal?”

The threat assessments of Student Jones might be more nefarious. UVA conspired to create a reason to suppress the outside counsel report on the shootings of which the threat assessments were a key part. If it has nothing to hide, why not try transparency, like the Act prescribes?

Walter Smith, a Henrico County attorney, is chairman of The Jefferson Council Research Committee.