by James C. Sherlock
Updated Dec. 18 at 16:30
The deck is stacked against the press, at least in the first step.
The University of Virginia, unsurprisingly, considers it not in its interests to release information to the press about the work of its threat assessment team in the case of Christopher Darnell Jones.
Mr. Jones, after that team failed to act, shot five people, killing three.
UVa’s Virginia Freedom of Information Act (FOIA, the Act) Officer works in the University Counsel’s office. The University Counsel’s job under Virginia law in civil matters is to defend the University. Protect it from things inimical to its interests.
The fact that this office also fields FOIA requests is and must be informed by that primary responsibility. That office will never knowingly break the law, but it will search it for provisions favorable to its client’s interest.
The office has only one client: the University.
Virginia’s FOIA law is dense. Most of its 48 pages are occupied with exceptions to the general duty to release information requested.
Agency attorneys are thus positioned to find an exception to repulse attempts at getting information that government agencies don’t want made public. Even if there is another part of that same law that arguably supports the request. The key modifier is “arguably.”
Such as information responsive to my FOIA request, which has been denied by the University Counsel’s office. I don’t blame them, I just disagree. They may prove right in the end. But the end is not yet here.
I will appeal to the FOIA Council, which contains Members of and works for the General Assembly. Different client.
If the information is ultimately to be released, we then will fight the next battle. Agencies get another bite of the apple. They get to make redactions they deem appropriate under the law.
The University’s FOIA office has done nothing wrong.
Rather, I find a structural problem with a FOIA system that requires the press to ask an agency’s defense attorneys for information inimical to the interests of their clients. And then lets those same attorneys redact prior to release.
It cannot work in favor of the freedom of information, so it doesn’t.
I am going to publish a series about my takeaways from this experience.
That at least you can read about.
Remember Peter Drucker’s famous five questions? The first one is, “Who is the customer?”
We delude ourselves if we think government lawyers have some higher duty. The good ones do exactly what any ethical lawyer would do. They defend the client.
If a request comes in for information that their agency does not want made public, it is their duty to act in their client’s interests. We expect our own attorneys to find provisions in the law that help us and fend off those that do not. Why would we expect less of attorneys for the government?
The University of Virginia Counsel’s office has done its duty.
It has found a section of the FOIA law, § 2.2-3705.4. Exclusions to application of chapter; educational records and certain records of educational institutions that in its view allows it to reject my request. It quotes subsection A.(1) of that law.
§ 2.2-3705.4. Exclusions to application of chapter; educational records and certain records of educational institutions.
A. The following information contained in a public record is excluded from the mandatory disclosure provisions of this chapter but may be disclosed by the custodian in his discretion, except as provided in subsection B or where such disclosure is otherwise prohibited by law. Redaction of information excluded under this section from a public record shall be conducted in accordance with § 2.2-3704.01.
1. Scholastic records containing information concerning identifiable individuals, except that such access shall not be denied to the person who is the subject thereof, or the parent or legal guardian of the student. However, no student shall have access to (i) financial records of a parent or guardian or (ii) records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto, that are in the sole possession of the maker thereof and that are not accessible or revealed to any other person except a substitute.
I am not an attorney.
So armed only with the English language, I have found a section of that same law that arguably directly supports my request. In response quoted back to the University’s FOIA office subsection A.(8) of the same law.
A. 8. Information held by a threat assessment team established by … a public institution of higher education pursuant to § 23.1-805 relating to the assessment or intervention with a specific individual (is excluded from release).
However, in the event an individual who has been under assessment commits an act, or is prosecuted for the commission of an act that has caused the death of, or caused serious bodily injury, including any felony sexual assault, to another person, such information of the threat assessment team concerning the individual under assessment shall be made available as provided by this chapter, with the exception of any criminal history records obtained pursuant to § 19.2-389 or 19.2-389.1, health records obtained pursuant to § 32.1-127.1:03, or scholastic records as defined in § 22.1-289. (emphasis added)
The public body providing such information shall remove personally identifying information of any person who provided information to the threat assessment team under a promise of confidentiality.
The University Counsel’s office responded that it considers every piece of information, 65 by their count that are responsive to my request, to be scholastic records. Which they assert is defined so broadly as to make A.(8) above inapplicable to any student.
Which would make one wonder what the General Assembly had in mind in adding that provision after the Virginia Tech massacre.
We will find out.
Bottom line. The General Assembly has put in place an administrative body to go to for opinions on legal disputes between the press and an agency’s attorneys who refuse their FOIA requests. Its opinions are only advisory, but they matter.
The Council can inquire what the original intent of A.(8) was when it was added.
Sen. John Edwards, who sponsored the 2010 bill which added subsection A.(8) to § 2.2-3705.4., is still serving. His District includes Blacksburg.
Intent seems clear from the published Summary of Sen. Edwards’ 2010 Senate Bill 207:
Threat assessment teams; records. Authorizes threat assessment teams to receive health and criminal history records of students for the purposes of assessment and intervention, and exempts records of threat assessment teams from the Freedom of Information Act.
However, if an individual who had been under assessment commits certain violent acts, any records created by the team shall be made publicly available” (emphasis added).
That bill was passed by unanimous vote at every roll call.
If ultimately the information is to be released, there will be redactions. Apparently by the same lawyers who oppose the release.
I have already been advised by the UVa FOIA office that redactions will be so extensive in this case as to make the information unusable. Because the threat assessment team discussed other students, whose information must be redacted.
Which would in turn seem to mean that the UVa threat assessment team never, on 65 different occasions which the FOIA office has identified, had a coherent discussion about Mr. Jones.
Which I hope is not true, and would in either event be of great interest to the attorneys representing the families of the dead and the survivors in civil actions against the University.
Which the University Counsel would defend.
There is justice in there somewhere.
But, again, the University Counsel has one client. The FOIA Council has another.
It will be interesting.
The update at 16:30 on Dec 17 reflects research into the original 2010 bill that added subsection A. 8 to Code of Virginia § 2.2-3705.4