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Virginia Supreme Court hears FOIA case

January 11, 2013 | Virginia News

RICHMOND – The Supreme Court of Virginia heard oral arguments Thursday in a case arising from the James City County Police Department's refusal to release personnel records in response to a Freedom of Information Act query.

Circuit Court Judge Robert Curran ruled against the county, which appealed his ruling to Virginia's high court.

Personnel records are one of the specified exemptions from FOIA — perhaps the most commonly used by local and state governments not to provide information. But, attorney Andrew Bodoh, representing plaintiffs Adam Ewing, said that's in conflict with a latter statute that specifically said Virginia police personnel files are subject to FOIA.

"That should be controlling," he said. "There's a conflict in the law."

Some of the justices weren't buying that.

"Are you arguing," asked Justice Bill Mims, a former member of both the House of Delegates and the Virginia Senate. "That the Virginia General Assembly intentionally made law enforcement personnel records subject to FOIA, while all other state and local government personnel record are exempt."

Bodoh, said that's what the statute seems to say.

The county's attorney argued that not only were the records covered by the personnel policy exemption, but that the police department was not required to create a document, a list of cases that Officer Ryan Shelton has handled, in response to a FOIA request.

"It was a list, you could have produced it if you wanted to," commented Justice Elizabeth McClannahan.

"There's a distinction between 'information' that a government agency has and a 'record' it might have," Lola Perkins, the lawyer, responded.

Chief Justice Cynthia Kinser asked pointed questions of both attorneys.

A decision in the case is not expected until the beginning of the court's February session.

The controversy has its roots in Shelton's arrest of Ewing, of Toano, on charges of failure to dim high-beam headlights, reckless driving and obstruction of justice in May 2011.

Those charges were not pursued by prosectors, although they left open the option of filing them again.

Ewing brought a $1.35 million civil suit against Shelton. In the course of that suit, Ewing's lawyers asked for Shelton's personnel file and a list of every case he had worked.

Both requests were denied, leading Ewing to sue Police Chief Emmett Harmon for the files.

The county eventually turned over a list of 47 cases Shelton worked.

By Steve Vaughan, .(JavaScript must be enabled to view this email address)
The Virginia Gazette
6:45 AM EST, January 11, 2013