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Fig
Leaf Bait and Switch
Culpeper
supervisors offered a novel justification for
closing a meeting to the public: They wanted to get
their stories straight. Incredibly, a judge bought
it.
Famed
Virginia local government attorney Roger Wiley used
a novel argument the other day in a Culpeper
County
test of Virginia’s Freedom of Information Act (FOIA).
Representing
the Culpeper County Board of Supervisors in a suit
brought by The Culpeper Citizen, a weekly
newspaper, Wiley argued that the supervisors’
closed meeting was justified for reasons beyond
those given publicly by the board.
According
to the Star-Exponent report of the ruling,
"in the meeting’s agenda, the county invoked
two exemptions to the FOIA guidelines to justify the
private conversation:
the need for legal consultation and the
discussion of a contract that would adversely effect
the county’s bargaining position if raised in a
public forum."
The
newspaper contended that the board of supervisors,
according to the Free Lance Star, "had
violated the Freedom of Information Act by not
mentioning in its agenda that the body intended to
discuss the new school in the meeting" and,
furthermore, that the contract for the new school
had already been signed, mitigating any
"adverse" impact that could arise in
public discussion of it.
But
that was not the half of it.
Wiley’s
successful strategy contained a startling admission.
Let’s call it "Fig Leaf Bait and
Switch" -- the supervisors were trying to hide
something, all right, just not what you think.
(In
the spirit of full disclosure, Roger Wiley is a
friend of mine; the Citizen is a regular
subscriber to this column.)
Wiley’s
position was that FOIA allows, by inference, these
kinds of closed deliberations. As a
precedent-setting offshoot, his argument also
would allow an FOIA exemption when supervisors
want to get their stories straight in order to present a
unified front to the school board and, by extension,
to the public.
Is
he right about that? Two
answers here:
No.
Roger Wiley is a smart guy, but he is dead wrong
about this one. There
is no reading of FOIA under the sun that would allow
reasonable people — folks who have even a
rudimentary grasp of the English language — to
reach this conclusion.
Yes.
Because the judge says he is.
And that makes it so.
Such is the nature of law in this country.
The law is what judges say it is — no more,
no less.
There
is no "right" or "wrong" here
— all the players in this one are sincere,
well-meaning, and well-intentioned — but there are
some "winners" and "losers."
Let me rephrase that. There are no "winners"
here, only "losers." And who are they?
The good people of
Culpeper County
,
Virginia
.
Lou
Emerson, the Citizen editor and co-publisher,
who brought the suit, got this one right by a mile.
Said Richmond attorney Roman Lifson, speaking
on his behalf: “The
public has a right to know what these elected Board
of Supervisors officials think about building a new
high school.”
As
luck would have it, the judge in this case, a
substitute, Goochland County District Court Judge
Edward Carpenter, read some murkiness into Virginia’s FOIA statute and expressed some skittishness.
“I
don’t think we can really know what this law
means,” Carpenter said, according to one report.
“How are you going to rule against someone
in that situation?”
Wrong
question, Judge Carpenter.
Nice punt, though.
Why
didn’t you ask yourself, “Are the citizens and
taxpayers of Culpeper
County
better off knowing what folks they’ve elected to
represent them really think, or are they better off
just guessing?"
The
answer to that one would be clear to most
10-year-olds.
--
November 1, 2004
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