Former Charlottesville City Manager Maurice Jones’ work cellphone has been discovered, complicating a Freedom of Information Act lawsuit filed by Unite the Right rally organizer Jason Kessler.
Kessler, the primary organizer of the 2017 white supremacist rally, has filed several lawsuits against the city in recent years, most of them centered around alleged violations of his constitutional right to free speech.
In October, Kessler filed a complaint in Charlottesville General District Court alleging that city spokesman and FOIA officer Brian Wheeler violated FOIA law in 2019 by not providing Kessler with text messages and emails he requested from Jones, who was the city manager at the time of the rally.
That lawsuit was largely dismissed in November after a judge determined that no responsive documents existed and other forms of relief were outside of the general district court’s jurisdiction. The city was ordered to pay Kessler’s court costs for failing to turn over some responsive documents in a timely manner.
Kessler revived the lawsuit in December, this time in Charlottesville Circuit Court, and again named as defendants Jones, Wheeler and former city Police Chief Al Thomas.
The lawsuit argues that the city violated Virginia’s Freedom of Information Act and the Public Records Act, which dictate which documents can be requested by the public and how public bodies should retain records, respectively.
In previous hearings, counsel on behalf of the city has argued that Jones’ phone was wiped prior to his successor taking over, as was policy.
Because Jones’ phone had been wiped, there were no documents responsive to Kessler’s FOIA request.
However, during a Wednesday hearing in Charlottesville Circuit Court, attorney Elizabeth Southall, who is representing the city, presented new information.
According to Southall, she was able to contact Jones and discovered that his phone was damaged when he left. Because the phone was damaged, Southall said it was unlikely it was passed on to Jones’ successor and, sure enough, the phone was located in city storage.
“We do not yet know if this phone has been wiped, as is policy, but given that it is damaged and wasn’t reused, we think there is a good chance it wasn’t wiped,” she said. “[The text messages] may exist, they may not exist — we don’t know yet.”
If the phone does contain text messages responsive to Kessler’s FOIA request, it could help resolve the case, she said, but it has yet to be determined whether this is the case. In the meantime, Kessler has filed another FOIA request related to Jones’ texts, she said, though that request is a separate matter.
Southall said the discovery of the phone did not change the city’s legal position and again argued that Kessler has no grounds to declaratory, injunctive and mandamus relief, given the language of the records laws.
Judge Richard E. Moore acknowledged that he has not yet ruled on whether Kessler has standing in this case and said he did not anticipate issuing a ruling in the next 60 days.
Consequently, Moore extended an injunction ordering the city to neither destroy nor delete any communications to and from a former city manager and a former police chief regarding the Unite the Right rally. The order will last until Aug. 15 or when Moore’s order is released, whichever comes first.