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Court expands Virginia’s freedom of information

June 20, 2005
By Washington Examiner

The old saying that "You can't beat City Hall" isn't exactly true, but challenging government officials can be difficult and expensive. Earlier this month, however, the Virginia Supreme Court made it easier for citizens to obtain information to bolster their case under the state's Freedom of Information Act.

The court not only reaffirmed that FOIA must be liberally interpreted, it ruled in Cartwright v. Commonwealth Transportation Commissioner that government officials are required to hand over documents upon request -- even if there are other ways to get the same information. The ruling is a victory for open government -- and a rebuke to bureaucrats who still balk at complying with the law.

The case was brought by Raymond Cartwright, joint owner of a family farm in Chesapeake that the Virginia Department of Transportation decided to take by eminent domain for a Route 17 highway construction project. When Cartwright asked VDOT for a photocopy of the "sales brochure" it prepared "for the purpose of preparing appraisals and offers for property that is subject to condemnation" last August, VDOT refused his FOIA request, even through Cartwright's property was in the process of being condemned and he had every right to know how VDOT was evaluating it.

Cartwright had good reason to wonder. On June 10, another court awarded the family $450,000 for the 51 acres VDOT condemned, almost 10 times the agency's $47,000 offer. Earlier this year, the Cartwrights were also awarded $2.4 million for another 13-acre parcel VDOT initially valued at $110,000.

Since the matter was in litigation, VDOT argued, Cartwright could have gotten the brochure during discovery. But he wound up paying $50,000 to get the same information that would have cost VDOT $30 to photocopy. Backpedaling, VDOT finally mailed Cartwright a copy of the brochure in January, assuring a lower court judge it would honor any future FOIA requests.

Not so fast, the Supreme Court said in refusing to dismiss Cartwright's appeal. In an opinion written by Justice Lawrence Koontz, the high court rejected VDOT's argument that since Cartwright could get the material in question during discovery proceedings, it didn't have to honor his FOIA request. "We hold that a citizen alleging a violation of the rights and privileges afforded by the FOIA ... is not required to prove a lack of adequate remedy at the law," the court noted. Government agencies must honor FOIA requests -- even if other ways to get the same information are available.

The Supreme Court then sent the case back to the Circuit Court, noting that if the sales brochure in question should have been disclosed under FOIA in the first place -- which VDOT essentially admitted when it belatedly sent Cartwright a copy -- he was entitled to reasonable court costs and attorney's fees.

"The specific ruling in this case is that in any litigation against the government, there's a different way of getting documents," Virginia Beach appellate lawyer Steve Emmert told the Examiner. "It's a big victory. FOIA is faster, cheaper and contains fewer exemptions (than the discovery process)." And you don't have to file a lawsuit or even hire a lawyer to make a FOIA request.

"This is a very significant ruling, and a very valuable tool for anybody who wants to bring a case against any Virginia government entity -- from a school board to a local board of supervisors to a city council," Emmert added. "They now have a fast and easy method to get government documents. (The Cartwright ruling) puts government entities behind the eight ball."

Private Citizens now have a much better chance at beating City Hall.