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Judge declines to dismiss FOIA suit against Spotsylvania

County's attempt to dismiss Hill's FOIA case fails; hearing set for next week

By DAN TELVOCK

Date published: 10/16/2007

By DAN TELVOCK

An attorney representing the Spotsylvania County government failed to get School Superintendent Jerry Hill's Freedom of Information Act lawsuit dismissed yesterday.

In Spotsylvania Circuit Court, J. Patrick Taves argued that because Hill's attorney filed the FOIA requests, Hill has no standing in the lawsuit.

The lawsuit, which charges that county officials didn't comply with the FOIA requests, stems from two e-mails Hill received, substantial portions of which were blacked out.

Steven Webster, Hill's attorney, filed the FOIA requests this year, seeking information that was used in the failed prosecution of Hill last year on an election-law violation and obstruction of justice charge. The charges were brought after the School Board sent out a flier about a proposed school-bond referendum.

Webster argued yesterday that he filed the FOIA requests on Hill's behalf. If the judge had dismissed the lawsuit, Webster said he had prepared a new one in his name that he would have filed yesterday.

Judge David H. Beck said he didn't see any contradiction with the filings and the lawsuit just because Hill's attorney signed the FOIA requests.

A date has not been scheduled for arguments, but attorneys said it will either be next week or Nov. 1.

Hill filed the FOIA requests to explore a separate civil lawsuit. Hill received more than 60 pages of e-mails, mostly between Supervisor Gary Jackson and a host of anti-Hill Republican conservatives. Another 30 or so documents were withheld because County Attorney Jacob Stroman said they are exempt because of attorney-client privilege.

Two e-mails between Republican leader Russ Moulton and Jackson had sections blacked out because they are "not even remotely related to the transaction of public business," Stroman wrote to Webster.

Hill then filed the FOIA lawsuit, asking for both e-mails in their original forms and for an injunction to force the county to comply with all future FOIA requests.

On Sept. 28, Moulton released to The Free Lance-Star the entire e-mail he sent to Jackson. In the e-mail, Moulton is critical of the prosecution of Hill's criminal case and mentions that Hill should be fired.

That's public business, said Jennifer Perkins, the executive director of the Virginia Coalition of Open Government. She saw a copy of the e-mail, and said Stroman "contorted both the spirit and the letter of the FOIA law."

On Oct. 11, Deputy County Administrator Ernie Pennington sent Moulton's e-mail to Hill's attorney because it was published in the newspaper Oct. 2. That made it "a matter of public record."

But portions of Jackson's reply to Moulton remain blacked out, and the county is fighting to keep it that way. Taves refused to say how much he is charging the county for his legal services.

Supervisor Hap Connors said that he has asked Stroman to release the e-mail in question.

"While I appreciate his reasoning, this has become an unproductive use of time and tax dollars," Connors wrote in an e-mail.

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Date published: 10/16/2007