Virginia Supreme Court upholds ‘open courts,’ narrows FOIA personnel exemption 

By: - October 23, 2022 9:00 pm

Supreme Court of Virginia in Richmond, Va. Parker Michels-Boyce for The Virginia Mercury

The Supreme Court of Virginia handed down two decisions Thursday in support of greater transparency in public access to both court hearings and information on government employees. 

Megan Rhyne, executive director of the Virginia Coalition for Open Government, called the dual transparency rulings, which were unanimous and penned by two different judges, surprising.

“We haven’t seen that kind of strength in a while,” she said.  

The first decision combined two cases — Daily Press v. Commonwealth of Virginia and City of Newport News v. Commonwealth of Virginia — that dealt with public access to a bail hearing for a Newport News police officer who shot a man, as well as to sealed documents containing city emails related to the incident. 

In 2019, former city officer Albin Trevor Pearson shot and killed a man as police were attempting to arrest him for allegedly abusing the city’s 911 system. (Pearson was convicted of voluntary manslaughter last month.) 

The commonwealth later subpoenaed the city of Newport News for any emails regarding the offense and required that those documents be sealed from public view. 

Virginia then asked that Pearson’s bail be revoked, “arguing that the sealed documents established probable cause to believe that Pearson’s pretrial liberty would pose a danger to the community.” 

At a hearing on the bail request, the commonwealth asked the court to close the proceedings to the public, triggering an objection from The Daily Press, its parent company Virginian-Pilot Media Companies and reporter Peter Dujardin. The three also asked the court to unseal the documents.

Newport News Circuit Court nevertheless closed the hearing and denied the request for both a transcript of the hearing and the unsealing of the documents. The Daily Press appealed that decision to the Supreme Court of Virginia. 

Justice D. Arthur Kelsey reversed the circuit court’s ruling on the hearing, pointing to the “open-court doctrine” that argues proceedings should only be closed on rare occasions when a compelling government interest outweighs the value of openness. 

“In the context of criminal proceedings, the doctrine imposes a presumption of transparency on one of the most basic functions of government,” he wrote. 

Rejecting several arguments for why Pearson’s pretrial bail hearing should have been closed, Kelsey said that “except in the rarest of circumstances,” bail decisions “must be made in open court so that the public — including victims of the defendant’s charged crimes and any potential victims of his future crimes — would know how and why, not simply what, the court has ruled on the issue.” 

While the Supreme Court of Virginia rejected several arguments from the city of Newport News and the state on why the city documents at issue should remain sealed, it sent the decision on unsealing back to Newport News Circuit Court for arguments. 

South Hill case

In Hawkins v. Town of South Hill, the court reversed a decision by Mecklenburg Circuit Court allowing the town of South Hill to withhold certain personnel information from a member of the public who had requested it under the Virginia Freedom of Information Act. 

That law exempts “personnel information” from the state’s mandatory disclosure requirements, and government officials have long pointed to this exemption to justify not releasing documents related to hiring, firing and performance of government employees. 

Virginia is one of only five states — the others are Florida, South Dakota, Massachusetts and Texas — to have a statutory exemption in its freedom of information law for “personnel information,” Justice Thomas Mann noted in the Virginia Supreme Court opinion.

“Virginia was just especially wide-open,” said Rhyne. “It was an undefined term, so that just meant people would keep pushing the envelope until someone pushed back.” 

Significantly, Thursday’s ruling finds that the only personnel information that government officials should consider exempt from disclosure under FOIA is information that “is tied to the employment of the individual in some way, and which otherwise would not be disclosed to the employer.” 

Social Security numbers or home addresses, for example, wouldn’t ordinarily be disclosed to an employer if a person wasn’t working for him or her. 

While Mann wrote that the court “will not legislate from the bench regarding which specific pieces of information are private,” he concluded that “data, facts, and statements are private if their disclosure would constitute an ‘unwarranted invasion of personal privacy’ to a reasonable person under the circumstances.” 

Rhyne said the decision puts guardrails on how officials can interpret what personnel information they can withhold from the public. 

“I’ve seen it at the local level, especially in police departments, where people say, ‘Oh no, this thing the employee did while being an employee is somehow a personnel record,’” she said. “And I think the court is trying to put a limit on it to say just because it’s about an employee doesn’t mean it’s personnel.” 

In the South Hill case, a dispute occurred between Richard Hawkins III and South Hill over whether the town should release seven documents requested by Hawkins related to employment disputes among town staff. 

The seven documents included a demand letter from a town employee’s attorney to the town attorney regarding the employee’s discrimination complaints, a one-page petition to the town’s personnel committee from seven employees requesting a meeting regarding the town manager, an email chain from a town employee to the town mayor and council regarding discipline of that employee, an unsigned document received by the mayor complaining about the town manager and town work environment and resignation letters from three different town employees. 

Mecklenburg Circuit Court concluded the anonymous complaint and part of the employee petition should be disclosed but agreed that the demand letter, email chain and resignation letters were exempt from FOIA requirements. Hawkins challenged that decision. 

The Supreme Court of Virginia found Mecklenburg had “erred in its interpretation and application of the personnel information exemption” and asked the court “to review and, if necessary, redact and release the documents at issue.”

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Sarah Vogelsong
Sarah Vogelsong

Sarah is Editor-in-Chief of the Mercury and previously its environment and energy reporter. She has worked for multiple Virginia and regional publications, including Chesapeake Bay Journal, The Progress-Index and The Caroline Progress. Her reporting has won awards from groups such as the Society of Environmental Journalists and Virginia Press Association, and she is an alumna of the Columbia Energy Journalism Initiative and Metcalf Institute Science Immersion Workshop for Journalists.