Yesterday, we posted regarding the Supreme Court of Virginia’s recent damages order in the ATI v. UVA FOIA case decided in April. A central sentence of that post was that “We’re at a loss to identify any basis for the $250 in damages that the Supreme Court of Virginia ordered.” The post noted that we would bring the matter to the attention of others, seeking their insight/explanation, that we would provide an update if more information became available, and that we hoped things were not as bad as they seemed. (In general, if you meet someone in the law who’s not open to new information and the possibility of things not being as expected, run the other way.)
Both on Twitter and off, leaders in Virginia’s legal & appellate community responded. Thanks Peter Vieth, Steve Emmert, and Jay O’Keefe! This post provides the explanation missed yesterday and then offers further thoughts in light of it. In sum, things are not as bad as they seemed, but they’re not good either.
Earlier this month, the Daily Progress and other media reported that the Supreme Court of Virginia awarded $250 in damages to climate scientist Michael Mann and the University of Virginia in a prominent Virginia FOIA lawsuit that we wrote about in April. (See also petitioners’ case documents webpage.) The media did not post an actual copy of the order making the award, and non-legal media often doesn’t get legal details quite right, so we questioned via tweets whether that money was actually “damages” or merely an award of appeal costs. (This is an important distinction: Damages are something awarded to a party when another party has caused a legal injury without a legal justification; appeal costs are routinely awarded to prevailing parties in an appeal without fault under Va. Rule 5:35.) We now have a copy of the order, and it appears the media was dead-on … and the Supreme Court of Virginia was dead wrong.
UPDATE AT END OF POST.
Last week, the FOIA Council posted a new model FOIA Rights & Responsibilities template. (H/T VCOG.) That template is a document designed to assist executive branch agencies in satisfying Va. Code § 2.2-3704.1’s requirement that they post certain FOIA-related information on their public websites.
One of the changes to FOIA in 2014 was an addition to the information executive branch agencies must post. HB 837, proposed by Delegates Mark L. Keam and David I. Ramadan, required agencies to add the following statement to their websites:
“A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. No public body shall impose any extraneous, intermediary, or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body. Any duplicating fee charged by a public body shall not exceed the actual cost of duplication. All charges for the supplying of requested records shall be estimated in advance at the request of the citizen as set forth in subsection F of § 2.2-3704 of the Code of Virginia.”
As anyone familiar with Virginia’s FOIA will know, that’s essentially the content of Va. Code § 2.2-3704(F).
Now, no one wants to be a voice of negativity, and any effort by the General Assembly to support FOIA and to inform the public about FOIA seems praise-worthy. But HB 837 deserves little praise because the bill failed to contain two obvious improvements, to itself and to the Code section it amended.
Should judges out of court, like the proverbial children, be seen and not heard? That’s a question being asked after Senior United States District Judge Richard Kopf (in the District of Nebraska) wrote a recent post sparked by the Hobby Lobby case on his blog Hercules and the Umpire, in which he concluded by saying: “As the kids say, it is time for the [Supreme] Court [of the United States] to stfu.” (“stfu” is linked here to the same place that Judge Kopf linked it, which will reveal its meaning if you aren’t familiar with the acronym.) To which, blogging law professors Jonathan Adler, Rick Hasen, and others have responded that “perhaps it’s time for Judge Kopf to heed his own advice.”