The estimable Carol Wolf just sent me a copy of the order in Paul Goldman’s Freedom of Information Act suit for documents regarding the Coliseum boondoggle. These include a stack that the City released to the Times-Disgrace but wanted over $2,000 to “review” before they would even consider giving them to Paul. (Can you spell “That Stinks!”?)
My handy ‘puter converted this from the pdf; any errors (notably the format) belong to that process, not to the Court:
In the Circuit Court of the City of Richmond, John Marshall Courts Building
On May 29, 2019, CAME Paul Goldman (“Petitioner”), pro se, and the City of Richmond (“Respondent”), by counsel, on Petitioner’s Petition for Mandamus (the “Petition”), in which Petitioner requested an order in mandamus compelling the Respondent to produce certain documents previously requested by Petitioner in letters dated March 21, 2019 and April 25, 2019, pursuant to the Virginia Freedom of Information Act, Virginia Code 2.2-3700 et seq. (“FOIA” or the “Act”). The letters correspond with Count I and Count Il of the Petition, respectively.
WHEREUPON, with the parties in apparent agreement that the documents covered in the Petition are “public records” subject to disclosure unless excluded under the Act, the hearing proceeded with Petitioner first offering an opening statement followed by that of the Respondent. Respondent presented several documents during its presentation and made argument concerning their meaning and legal import but did not move them into evidence. Throughout, Petitioner argued and objected to Respondent’s position, observing that under the Act, “the public body shall bear the burden of proof to establish an exclusion by a preponderance of the evidence.” Va.
Code Am. S 2.2-3713(E). This requirement extends to Respondent’s affidavit of a witness which purported to detail the reasons and circumstances that would support Respondent’s argument that the information sought in the Petition was subject to ongoing negotiation and thereby excluded from disclosure under Virginia Code 2.2-3705.1(12). The Court stated that it was unwilling to accept statements by counsel for Respondent as evidence over objection. This addressed the information sought by Petitioner in Count I of the Petition.
As to the information sought in Count Il, Petitioner contends that he now seeks only 2643 documents that Respondent has previously provided to the Richmond Times Dispatch (the “RDT”), pursuant to a FOIA request. Respondent contends that before it can know what documents to disclose, if any, Respondent needs to examine each document to determine whether disclosure is proper. Further, Respondent, by counsel, stated that some documents were provided to the RDT inadvertently and may not be subject to disclosure. Respondent contends that the case of Tull v. Brown, 255 Va. 177, 494 S.E.2d 855 (1998) stands for the proposition that a public body’s prior disclosure of information does not waive its claim of exemption for the same information in a subsequent request, for the well-known reason that estoppel does not operate against the government. The Court finds, however, that the Tully case is distinguishable from the case at bar, and accordingly, not controlling for reasons stated on the record.
WHEREFORE, it is hereby ORDERED, ADJUDGED AND DECREED that Respondent
shall disclose the documents requested in the Petition upon payment by Petitioner of costs in the amount of $50.00 for disclosure under Count I and costs in the amount of $200.00 for disclosure under Count Il, within ten (10) days of such payment. It is further ORDERED that Petitioner’s request for attorney’s fees is DENIED.
The Clerk is directed to forward a copy of this Order to all parties.
Exceptions are noted.
ENTER: 6 / 7/ 19