Court Will Rule on Public Versus Private Lives

Circuit Court Judge Thomas D. Horne has not yet ruled on two Freedom of Information Act cases that came before him Jan. 28 involving questions of alleged influence on supervisors' land-use decisions. But, he cautioned, "I am not ruling that every record in a public official's possession is a public record."

District Court Judge Dean Worcester ruled late last year that Board of Supervisors Chairman Scott York (I-at large) and Supervisor Jim Burton (I-Blue Ridge) must turn over to Sally Mann all e-mails from their home computers that they had withheld from her FOIA requests on grounds that the e-mails in question are personal, not public.

York and Burton, and Supervisor Lori Waters (R-Broad Run) in a third FOIA request from Mann, appealed those decisions to Circuit Court.

Mann, of Hamilton, has brought the three FOIA cases and a challenge to the legitimacy of the Hillbrook Agricultural District. She charges that the three supervisors have corresponded with seven named individuals who, she claimed, have lobbied against her application to subdivide and develop 35 acres on Harmony Church Road, south of Hamilton.

Assistant County Attorney Milissa Spring argued in November in the Waters case, before Worcester, that public officials still have private lives, and that the personal part of their lives is not subject to public disclosure.

Worcester differed: "It does not meet the purpose of FOIA that the official can decide what is public or private."

Horne said he had to "respectfully disagree" with Worcester's broad interpretation of FOIA. "The General Assembly never intended that every record in the possession of a public official is a public record subject to FOIA," he said.

The issue now, he said, is "how does the court define" personal and public.

Mann, formerly but not currently licensed to practice law in Virginia, represented herself in the appeal before Horne. She conceded that her request was for "public records" but argued that any correspondence between a public official and a constituent is a public record.

Dean Settle, of Lovettsville and one of the seven named correspondents, testified that he had intentionally put the name of Chris Curto, a contact at the Republican Party of Virginia, on the forwarding list of an e-mail he sent Burton, "just to see how far [Mann] would go."

Mann included Curto on the list of the seven individuals corresponding with the supervisors. "I call it a trap door," Settle said later.

Curto, Settle testified, "is in no way, shape or form known to Jim Burton."

Settle later described himself as not an activist but "an individual with loud opinions."

Mann also argued that York's office had overcharged her for complying with her request for documents.

York's aide, Keith Nusbaum, testified that conducting a personal search through 24 binders of e-mails to the Board of Supervisors -- as he was ordered to do by Worcester in court on Oct. 10 -- took him 18.5 hours.

Mann argued that those were public records and she sorted through them herself in far less time. Horne questioned whether she should be charged for a search of public records.

Worcester said in court on Oct. 10 that Mann would have to pay for the search of the 24 binders of printed e-mails, and for a search by a more technologically proficient person than Nusbaum of the e-mails that had been deleted after six months on the county server.

Spring argued, for the county, that the state's FOIA law does not address or define personal records.

Mann argued that a public official should not be the party to decide what the public can and cannot see. "You have to err on the side of handing over the documents," she said.

York and Burton, Spring countered, have already "provided Mrs. Mann with all public documents. They did not cite an exemption because personal documents are not covered under the law. This would be an open door to every bit of personal information in any public official's possession. "

Horne will issue a written ruling.

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