The SCC and FOIA, part 2: Throwing Christian to the lions

The first post in this series briefed Christian v. SCC [282 Va. 392, 718 S.E.2d 767 (2011), available at SCV & Google Scholar] in detail.  This post explains why Christian is a terrible decision.

At the outset, let’s focus briefly on the facts and parties in Christian, to make two observations.  First, the Supreme Court decided FOIA’s applicability to the SCC without core FOIA interests at stake.  The Clerk of the SCC had responded (albeit not entirely in compliance with FOIA), and the reason the Court concluded that the case wasn’t moot – the reason the case was still a live controversy worth hearing and deciding – was that Christian was seeking costs and fees.  See 282 Va. at 398, 718 S.E.2d at 770.  We submit that a litigant whose case is primarily about collecting costs and fees from the government, without any particularly noteworthy harm or struggle, doesn’t present a compelling case.

Second, Christian was pro se (representing himself).  We’re very sympathetic to those for whom the costs of a lawyer are prohibitive.  And Christian did a good job for someone representing himself.  But the fact is that if Christian had had a good appellate lawyer, he would have been much better off and might have changed some judicial minds.  For example, Christian failed to file a reply brief, meaning that the SCC’s legal arguments largely went unanswered.  (The Supreme Court has ensured that oral argument recordings are unavailable to the public, so we can’t tell if Christian managed to reply to the SCC’s arguments in person.  But the fact is that a reply brief can be more well-crafted, detailed, and persuasive than oral argument.)  [UPDATE: As of January 2014, the Supreme Court has begun posting oral argument audio online.]

Moving on to the substance, the Supreme Court held that FOIA did not apply to the SCC for three reasons:

  1. The SCC and its records are governed by a separate and parallel set of laws.
  2. Because the SCC derives its authority from the Constitution of Virginia, it is not a “public body” under FOIA.
  3. FOIA lacks a constitutional enforcement mechanism applicable to the SCC, and a policy without a constitutional enforcement mechanism lacks legal weight.

One of these three reasons is completely invalid, and the other two can be effectively rebutted.

Response to 2:  The Court erred; FOIA applies to constitutional bodies.

FOIA unmistakably reaches governmental bodies that derive authority from the state constitution, as opposed to merely from statute.  It wasn’t always so clear.  In June 2001, the Supreme Court parsed FOIA and concluded that FOIA did not apply to the office of a Commonwealth’s Attorney because the Commonwealth’s Attorney’s authority stemmed from the Virginia Constitution.  See Connell v. Kersey, 262 Va. 154, 161, 547 S.E.2d 228, 231 (2001) [available at SCV (slip op.),Google Scholar].*

* Side note: The Court in Connell noted that it “share[d] the concern” expressed by open government advocates and took pains to disclaim a broad holding.  See id. at 162 n.2 (“our holding should not be interpreted as placing any restriction on the application of the FOIA to public officials and their offices beyond the narrow focus of this opinion as it relates to FOIA requests made to a Commonwealth’s Attorney for records related to ongoing criminal investigations or prosecutions”).  But, to be blunt, sometimes you can’t trust courts – today’s limitation can be erased easily tomorrow, as Christian shows.

The General Assembly responded to Connell in 2002, the very next legislative session, amending FOIA to remove the “public body” vs. “public official” distinctions that the Supreme Court had relied upon.  Eliminating any doubt, the legislature also modified the definition of public body in Va. Code § 2.2-3701 to provide: “For the purposes of the provisions of this chapter applicable to access to public records, constitutional officers shall be considered public bodies and, except as otherwise expressly provided by law, shall have the same obligations to disclose public records as other custodians of public records.”  See 2002 Va. Acts ch. 393.  That language persists to this day.

Some readers may be used to the world of constitutional law, where a judicial holding can bind a legislature.  In the world of statutory interpretation, however, a court’s holding can be overturned by amending the statute.  See, e.g., The Falls Church v. Protestant Episcopal Church in the United States, 285 Va. 651, 665, 740 S.E.2d 530, 537-38 (2013) (a limitation on denominational trusts recognized in multiple past Supreme Court of Virginia decisions “is a creature of statutory law and, therefore, it is within the power of the General Assembly to narrow or even eliminate the limitation, should it so choose”).  After the General Assembly amended FOIA in 2002, therefore, Connell was no longer good law, and the position that a constitutional source of authority provided an exemption from FOIA was untenable.

Perhaps you’re thinking that surely the Supreme Court in Christian explained why Connell was still good law and why the constitutional vs. statutory distinction still mattered for FOIA.  Nope.  The Court just quoted the Connell decision, said that “Likewise, the SCC … is similarly exempt,” and kept moving.  Everyone makes mistakes, and the bottom line is that the Court erred.**  The Supreme Court should correct this error of law, which provides reason to view the Christian decision with skepticism.

**  The Supreme Court’s error does not appear to be traceable to a litigant.  The SCC spent about half (15 pages) of its brief on why FOIA didn’t apply, and nowhere in that discussion did the SCC mention Connell or argue that its constitutional status provided a FOIA exemption.  Only the SCC’s recognition that Connell was no longer good law explains that omission.  Remarkably, even a passing mention in Christian’s opening brief of the post-Connell amendment of FOIA failed to alert the Court to the error.

 Response to 1:  FOIA applies even though other laws govern SCC records too.

The mere existence of separate and parallel laws does not justify pushing FOIA aside.

Often, more than one law addresses a particular subject matter.  For example, government handling of Social Security numbers is covered by both the GDCDPA and the Protection of SSNs Act (not to mention other statutes that only apply to particular areas of law, cases, or agencies).  In such situations, the rule is NOT that you ignore all but one set of laws.

To the contrary, it is a well-established principle that where more than one statute addresses a subject matter, the statutes are to be construed together and harmonizedE.g., Blue v. Virginia State Bar, 222 Va. 357, 359, 282 S.E.2d 6, 8 (1981) (“A statute should be construed, where possible, with a view toward harmonizing it with other statutes.”); Parker v. Commonwealth, 42 Va. App. 358, 378, 592 S.E.2d 358, 368 (2004) (“all statutes on the same subject matter, i.e., those standing in pari materia, must be considered together and harmonized if possible”).  This principle furthers the fundamental goal of interpreting and applying statutes as the legislature intended and also makes the law work better:

In the construction of statutes, the courts have but one object, to which all rules of construction are subservient, and that is to ascertain the will of the legislature, the true intent and meaning of the statute, which are to be gathered by giving to all the words used their plain meaning, and construing all statutes in pari materia in such manner as to reconcile, if possible, any discordant feature which may exist, and make the body of the laws harmonious and just in their operation.  [Id. (quoting Tyson v. Scott, 116 Va. 243, 253, 81 S.E. 57, 61 (1914)).]

Statutes that appear to conflict with each other are a prime area for such interpretation.  See, e.g., Board of Supervisors v. Marshall, 215 Va. 756, 761, 214 S.E.2d 146, 150 (1975) (“If apparently conflicting statutes can be harmonized and effect given to both of them, they will be so construed.”); Standard Drug Co. v. General Electric Co., 202 Va. 367, 378-79, 117 S.E.2d 289, 297 (1960) (“where two statutes are in apparent conflict, it is the duty of the court, if it be reasonably possible, to give to them such a construction as will give force and effect to each”).  Thus, even if there were apparent conflicts between the SCC-specific statutes and FOIA, the Court should have interpreted the statutes in a harmonious way, not held FOIA wholly inapplicable.

In fact, it’s far from clear whether there are any substantial conflicts between the SCC-specific statutes and FOIA.  Take the three statutes mentioned in the Court’s opinion as “examples of apparent conflicts” identified by the SCC:

  • Va. Code § 12.1-21.1 provides for the Clerk of the SCC to charge “reasonable fees as are fixed by Commission order or rule” for certain types of information requests.  FOIA too (in § 2.2-3704(F)) allows a public body to assess “reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records.”  Those statutes might be interpreted as conflicting, but they can easily be read in harmony, with FOIA’s actual cost limitation providing an upper limit to the reasonable fees allowed by the SCC-specific statute.
  • Va. Code § 6.2-101 provides for the confidentiality of certain SCC information.  It requires no great leap to read that together with FOIA, which allows for (in § 2.2-3704(A)) provisions of law outside FOIA to provide an exemption from the default records disclosure requirement.
  • Va. Code § 12.1-19(A) provides that the Clerk of the SCC shall preserve and have custody of SCC records, which “shall be open to public examination in the office of the clerk to the same extent as the records and files of the courts of this Commonwealth.”  It is true that § 12.1-19(A) therefore follows court records statutes rather than FOIA for some records, such as SCC case files.  But “other records” maintained by court clerks “shall be public records and subject to the provisions of [FOIA].”  Va. Code § 2.2-3703(A)(5).  In sum, not only is there no conflict here (because FOIA allows for other statutes to determine the availability of specific records), but applying the SCC-specific statute actually requires applying FOIA (for some records).

What’s telling about the Christian opinion is not that it assessed the interaction of the SCC-specific statutes and FOIA differently; what’s telling is that the Court failed to mention basic principles of statutory interpretation and didn’t even try to read the statutes in harmony.

Response to 3:  Laws are still laws, even if they can’t be enforced by the public.

The last of the three reasons given in Christian for why FOIA didn’t apply to the SCC was that there was no constitutional mechanism for enforcing FOIA against the SCC.  (Section 2.2-3713(A) provides for appeals to general district or circuit court, but SCC decisions can be appealed only to the Supreme Court under Va. Const. art. IX § 4.)  And, according to the Supreme Court in Christian, “a policy with no constitutional enforcement provision has no legal weight.”  282 Va. at 401, 718 S.E.2d at 771.

It is not at all clear to us that there is no constitutional enforcement mechanism.  For example, § 2.2-3713(A) is silent as to whether it is exclusive, and important principles of statutory construction call for interpreting § 2.2-3713(A) as non-exclusive, thereby allowing for the constitutional mechanism of appeal directly from the SCC to the Supreme CourtSee Commonwealth v. Doe, 278 Va. 223, 229, 682 S.E.2d 906, 908 (2009) (“whenever possible, we will interpret statutory language in a manner that avoids a constitutional question”); id. at 230, 682 S.E.2d at 908 (“We also apply the related principle of construction that when a statute can be given two different interpretations, one that is within the legislative power and the other without, we are required to adopt the interpretation that conforms to the Constitution.”) [available at SCV & Google Scholar].

The Court in Christian didn’t mention the above principles of constitutional avoidance and construction, simply remarking instead that “there is nothing in the VFOIA to suggest that the language in the enforcement provision, now Code § 2.2-3713, is anything less than exclusive.”

But let’s set aside the correctness of the enforcement mechanism assessment for a moment and ask this basic question:  even if a law doesn’t provide a way for the member of the public to enforce it, isn’t it still a law?

For example, the Virginia Public Records Act does not allow members of the public to sue agencies to enforce the Act.  It is absurd, and plainly contrary to the intent of the Virginia Public Records Act, to conclude that the absence of a private right of action for enforcement means that governmental agencies are free to destroy public records willy-nilly.  Other examples exist, many of which have to do with laws addressing the structure and operations of government.

The point is that governmental bodies and officials are required and expected to follow the law even if they cannot be sued and forced to do so by a member of the public.  Indeed, the Supreme Court has said that our system of government requires it:

The law never presumes that a man will violate the law. Rather, the ancient presumption is that every man will obey the law….  [A] similar presumption follows the public official into his office. Sometimes, regrettably, the public trust is betrayed and the office dishonored. But the presumption itself survives, as it must, for our system of government could hardly function if the law were to presume that all public officials are scoundrels deserving continuing supervision by judicial overseers.  [WTAR Radio-TV Corp. v. City Council of Virginia Beach, 216 Va. 892, 895, 223 S.E.2d 895, 898 (1976).]

The Supreme Court’s blithe dismissal of FOIA (with respect to the SCC) in Christian notwithstanding, it is near impossible to believe that the Court meant to hold that the law may be ignored by governmental bodies and officials as long as the public does not have a mechanism to enforce the law against them.  But that’s what the Court’s tying of legal effect to an enforcement mechanism suggests.


The Christian case is over; the decision isn’t going to change tomorrow.  But as shown by the mini-flap over the Office of the Attorney General suggesting that it was exempt from FOIA, and by the negative attention related to SCC openness in procurement, negative consequences follow a lack of openness and an outside-the-law attitude.  It’s important to trace those consequences to their source:  a lack of commitment to following FOIA (and other public-friendly laws), thanks in large part to Christian, a Supreme Court decision that is a model for appellate courts to avoid.

In our next post, we’ll go beyond the three bad reasons expressed by the Supreme Court and explore what seems to have been really going on in Christian.  We’ll also take a look at how legislative changes could solve the problem, if the General Assembly has the will to affirm open government.


One thought on “The SCC and FOIA, part 2: Throwing Christian to the lions

  1. Pingback: Decision expected tomorrow in Mann UVa FOIA case | Watts Up With That?

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