HoodaThunk?

So says Circuit Court Judge Thomas Horne ahead of a ruling on the appeal to the case wherein a lower court judge has explicitly said otherwise. Readers of this blog know full well my stance on the matter from my previous posts, here, here, here and here. While Judge Horne agrees with most everyone familiar with this case that the issue is how to define personal and public, he doesn’t buy Judge Worcester’s tortured logic that concluded one must assume every utterance, brush of a pen, and tap of a key by a public official represents a public document.

Horne said he had to “respectfully disagree” with Worcester’s broad interpretation of FOIA. “The General Assembly never intended that every record in the possession of a public official is a public record subject to FOIA,” he said.

The issue now, he said, is “how does the court define” personal and public.

Mann, formerly but not currently licensed to practice law in Virginia, represented herself in the appeal before Horne. She conceded that her request was for “public records” but argued that any correspondence between a public official and a constituent is a public record.

It appears that Ms. Mann’s argument isn’t as compelling as she thought, Judge Worcester notwithstanding. Judge Horne, I think, sees with a far clearer vision and a more rational perspective on the FOIA law. While the actual ruling hasn’t been handed down, his statement that he’s not going to make the blanket assertion his colleague on the bench has made in the lower court is already an improvement. I look forward to seeing those rulings and will post what I can when they’re made public.

It looks, from the report, that Loudoun’s own Dean Settle proved to be a huge tripping point for Ms. Mann. The report quotes Settle as describing himself not as an activist but as “an individual with loud opinions.” (Ed.: Heh! Now that’s some truth in advertising! Nicely done, Dean.) Mann’s case that the politicians in question had not fully complied with FOIA rested partly on the fact that some e-mails copied, or “CC’d,” individuals who appeared nowhere else in the document dump. Her assumption was that the e-mails to and from these persons were being hidden from her. As anyone who gets e-mail regularly knows, it’s entirely possible to be a person copied on an e-mail sent from someone you don’t directly correspond with. Apparently, Dean laid that little trap in front of Ms. Mann and she stepped right into it:

Dean Settle, of Lovettsville and one of the seven named correspondents, testified that he had intentionally put the name of Chris Curto, a contact at the Republican Party of Virginia, on the forwarding list of an e-mail he sent Burton, “just to see how far [Mann] would go.”

Mann included Curto on the list of the seven individuals corresponding with the supervisors. “I call it a trap door,” Settle said later.

Curto, Settle testified, “is in no way, shape or form known to Jim Burton.”

The fact that Curto was on the forwarding list and yet had had no direct communications with Burton puts the lie to the argument that such communication must exist. With that argument debunked, the notion that the absence of such e-mails shows some documents were hidden isn’t compelling and that takes the rest of the argument down the drain. Mann argues that the courts should “err to the side of handing over the documents” because she feels that the official in question shouldn’t be the one determining whether the document is public or private. I had this to say regarding that notion:

I also think that judges should err on the side of caution in cases such as these and do what they can to protect the privacy of individuals – those serving in public office no less than those who aren’t. It’s been suggested that the judge could have and should have appointed a “court arbiter” to go over the redacted e-mails in this case and make a call as to whether or not the redacted information dealt with the transaction of public business. That would have provided an unbiased eye on the e-mails (to remove the concept that the person with the interest in keeping things private being the one to determine whether something should be redacted) and a shield for the official’s personal communications such that they weren’t just handed over to a hostile party. I think that would have been the wisest approach in this case.

And I still do. Many agencies have a “compliance officer” to handle FOIA requests such as these. Perhaps Loudoun County and Virginia as a whole should explore this. Hopefully, this issue can be laid to rest and the General Assembly can take up this discussion so cases like this don’t take up valuable court time.