Court Rules All E-Mails Are Public; Loudoun Co. To Appeal

Another Freedom of Information Act lawsuit is headed for an appeal.

On Nov. 20, General District Court Judge Dean Worcester ruled that Supervisor Lori Waters (R-Broad Run) cannot withhold e-mails she deems to be personal from Sally Mann.

It would not be appropriate, Worcester ruled, for the court to give a public official the right to decide on his or her own discretion which documents are public and which are private.

He ordered Waters to turn over copies of "all e-mail records requested, without deletion or redaction on the basis that the record is private or personal."

Waters immediately promised an appeal to Circuit Court. Her appeal will join those of Worcester's previous rulings in FOIA cases involving supervisors Jim Burton (I-Blue Ridge) and Scott York (I-at large). Those appeals are scheduled to be heard Jan. 28.

Waters said the ruling "does not appear to settle the issues raised in court, does not make a distinction on what is a public record and what is personal or campaign-related and not subject to FOIA."

Mann, of Hamilton, requested all e-mails that Waters had sent to or received from nine individuals, starting Jan. 1, 2006. Mann told the court she has had land-use applications before the Board of Supervisors in this time period, and she wanted to know the identity of nine individuals she named in the FOIA request, and why they opposed her application and ridiculed her on various Web sites.

Waters turned over 178 pages of documents, including all e-mails stored on her county government computer, and some of the e-mails on two other accounts. She blackened sections of some of these e-mails from her non-government computers, claiming those sections were personal and did not deal with public business.

She alone reviewed the documents from her home computers and decided which were public business and which were personal. Public officials, she argued, still have a personal life, and the FOIA law addresses only public documents.

Worcester disagreed, as he had earlier in Mann's FOIA requests to Burton and York.

Modern technology, Worcester wrote, has given Waters a "virtual office" that follows her everywhere, 24/7.

His ruling may infringe on the privacy of a public figure, Worcester wrote, and "that is simply a consequence of being a public official."

The General Assembly may want to create an exemption for personal or private communications, or to clarify the definition of "transacting public business," Worcester concluded, but it hasn't done so yet.

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