Signs at a polling location in Buckingham County, Va., November 3, 2020. (Parker Michels-Boyce / For the Virginia Mercury)
The newly appointed interim leader of Buckingham County’s election office recently derided a Democratic county supervisor’s Freedom of Information Act requests as “nonsense” and “ridiculous” while tacking on what he called a $200 “convenience fee” to a bill for public records.
Under state law, public officials are only allowed to charge for actual costs they incur for responding to FOIA requests, such as staff time spent searching for documents and the expense of printing hard copies.
“It’s absolutely not allowed under FOIA to have some sort of extra fee that is unrelated to the actual cost,” said Megan Rhyne, executive director of the Virginia Coalition for Open Government.
Late last month, Buckingham Supervisor Jordan Miles sent two FOIA requests to new General Registrar Luis Gutierrez, who was hired by Buckingham’s Republican-controlled Electoral Board.
Buckingham’s election office made national news a month ago when NBC News published an article revealing the county’s entire election staff had quit after Republicans took control of the Electoral Board in January. The staffers who left pointed to baseless voter fraud claims as a significant factor in their decisions.
In a pair of far-reaching records requests, Miles sought a variety of documents from the registrar, including minutes and meeting notices of the Electoral Board, several months’ worth of email correspondence among local election officials and information about the hiring process that led to Gutierrez getting the job in mid-April. He also requested records on absentee ballots from the 2022 election, an inquiry Miles says was part of his efforts to debunk claims circulated by local conservatives that a significant number of absentee votes cast in the county were invalid.
Gutierrez, who received a temporary appointment to fill the remainder of the previous registrar’s term but could be reappointed to a new term when the current one ends June 30, made it clear to Miles that he didn’t appreciate being sent FOIA requests just a few weeks into the job. In an email, he accused Miles of “trickery” and attempting to “knock me off balance.”
At one point during email correspondence obtained by the Virginia Mercury, Miles cited a rule in state law that allows public bodies to require up-front deposits for any FOIA charges expected to exceed $200.
In an emailed response to Miles on Monday, Gutierrez said that “from this point forward, every FOIA Request that you send me wil[l] exceed $200.00 dollars.”
“Until you earn back my respect, I will do no favors for you,” Gutierrez wrote. “I don’t even know why you, a Board Supervisor, have anything to do with, or interest in the goings-on of my office, and why you appear to be out to have my job, but I am getting a better and better idea why, every day that I am in this office.”
Gutierrez, who runs voter registration and elections in the rural county of almost 17,000 people, noted that he was adding a $200 “convenience fee” to an existing bill of $575.09. He said he could “forget” the extra $200 if Miles were to pay the $575.09 by May 15.
“I hereby am notifying you and your pawns that my services will absolutely exceed $200.00,” Gutierrez wrote. “Secondly, since you are obviously a young man without any type of ethical business aptitude and respect for other individual’s time spent on your trickery and mockery, you are free to come pick up these FOIA Requests at my office. I will not be mailing them because my time is valuable, and you have annoyed me for the last time. No more playing nice, Mr. Miles. I tried that, and look where it got me with you.”
The bill Gutierrez sent Miles this week, which indicated the registrar had spent 14 hours responding to the requests, included a $200 line item labeled “convenience fee.” Gutierrez requested payment by May 10.
In Monday’s email to Miles, Gutierrez said the supervisor “obviously cannot afford to pay me for my time gathering information that either you could have gotten yourself, or information I know nothing about.”
“So, Mr. Miles, what is the meaning of your games and what pray tell is your desired outcome? To see me fail? To bury me in paperwork that takes up my time? And you, sir, are trying to get out of paying my fee for my time?” Gutierrez wrote. “I suggest that you get a part-time job at WalMart, then, Mr. Miles, so that you can pay my fees.”
In an interview, Miles, a former editor of the Farmville Herald newspaper, said he was talking to legal counsel about the matter and his next step “could involve the courts.”
“I know the ins and outs of FOIA,” Miles said. “FOIA does not allow for a $200 convenience fee.”
Reached by phone Thursday, Gutierrez said he had no comment.
Gutierrez wrote Miles a lengthy response to the FOIA requests but provided few of the records Miles requested, often indicating he did not have the requested records and didn’t know who did. He said he did not have a public notice for the Electoral Board meeting at which he was hired.
“Nor am I aware that the public must be notified of a meeting date,” Gutierrez wrote. “I thought the Electoral Board hires the registrar, and the public has no say in that decision? If this is not the case, please explain.”
Virginia’s FOIA law requires government bodies, including electoral boards, to publish notices showing when and where they will meet and what business will be taken up, with some exceptions for emergencies.
At another point in the correspondence, Gutierrez suggests he might send his own FOIA request to Miles. He ended up asking for copies of his office’s current budget and the budget from the year prior.
Miles shared some of the communications with both the Electoral Board and his colleagues on the Buckingham Board of Supervisors.
“In his role, it is unacceptable to talk to anyone like this, much less an elected official,” Miles said in an email to the two Electoral Board members who oversee Gutierrez’s work. (Following significant turnover on the board, one seat remains vacant.) The two members, Dr. Karen Cerwinski and Woody Hanes, did not immediately respond to requests for comment.
Under state law, electoral board members are selected by local judges from lists of nominees prepared by local political parties. Registrars are often hired or fired based on which political faction controls the board. Another law says the party that most recently won the governor’s mansion gets control of all 133 electoral boards. Because Republican Glenn Youngkin won in 2021, all of Virginia’s local electoral boards have switched to Republican majorities.
At other points in his emails with Miles, Gutierrez said he’s hoping to serve all citizens of Buckingham and build good relationships with those he’ll be working with.
“I am not a very public individual so I prefer to remain out of the spotlight of the media, as words often are ‘grossly misconstrued’ to read one thing but in reality, are quite the other,” Gutierrez wrote to Miles. “I am sure that you are aware of how the media has a tendency to do this! Lord, I miss Walter Kronkite and Ted Koppel!”Miles-Gutierrez correspondence_Buckingham_Redacted
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