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Opinion/Editorial: The public interest again appears at risk

Opinion/Editorial: The public interest again appears at risk

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Now, let’s see if we got this right:

Members of the public cannot use the Virginia Public Records Act — even though the records ultimately should belong to the public?

Briefly summarized: The City of Charlottesville has argued in court that a plaintiff has no right to challenge city actions under the PRA.

And if the city’s right, then the statute is wrong — morally wrong.

Representing Charlottesville, attorney Elizabeth Southall told a judge recently that a citizen plaintiff has no right to relief under the statute.

The law recently was revised by the General Assembly, she said, so that citizens lack the ability to legally challenge governments’ record-keeping.

The plaintiff’s lawyer disagrees. The PRA is part of the Virginia State Code’s approach to freedom of information, said Andrew Bodoh, author of “The Virginian’s Guide to FOIA.”

The PRA and the Virginia Freedom of Information Act are intended to work together, he argued, and so there is an implied right that the citizen access granted in the FOIA extends to the PRA.

He’s right: The Public Records Act is fundamentally necessary to the Freedom of Information Act. FOIA gives citizens the right to request and receive public documents (outside certain specified exemptions).

But if those documents aren’t maintained in the first place, then the freedom-of-information protections are rendered impotent.

Bodoh was acting for client Jason Kessler, who had asked to see records relating to the white-supremacist rally that turned deadly here in August 2017. Kessler helped organize that rally. The man’s ideology is disgusting, and he is abhorred for his actions and beliefs.

But the issue here is not about those actions and beliefs, but rather about a possible deficiency in state law.

Kessler became curious about statements made by then-Mayor Mike Signer in his book about the rally, and especially about referenced text messages involving the men who were employed as city manager and police chief at that time.

Kessler filed a FOIA request to see those texts. He was told that they were wiped, according to city policy, when a new manager came on board.

Kessler then alleged that Charlottesville improperly eliminated the texts, invoking the Public Records Act. He wants them resurrected if data files can be found.

Now, again, the point here is not to side with or against Kessler. Indeed, some records can be discarded according to law and business best practices.

The point here is to raise questions about state law.

The argument that the FOIA and PRA are meant to work together is morally compelling. Citizens are supposed to have access to public information — which implies that the information is meant to be retained for them and, further, that they have the right to legal redress if it isn’t.

Southall contends that the statute’s rewrite removes citizens’ right to legal action and gives it to the Librarian of Virginia — and even then is intended to be more about guidance than about punishment for record-keeping (or record-deleting) mistakes.

But if Southall’s interpretation is correct, that carries serious and chilling implications for public access.

If the act doesn’t exact meaningful penalties for wrongly deleting records, what force does it have to hold governments accountable?

And suppose the Librarian of Virginia isn’t inclined to get involved in a case of wrongdoing. Then who can? Someone else needs to have that chance.

“Maybe [the General Assembly] should have done a better job with it, but this is what we’re stuck with,” Southall said of the PRA rewrite.

Well, we, the public, shouldn’t be stuck with it.

We have a new General Assembly whose progressive tilt ought to make it sympathetic toward issues of public empowerment and citizen access to information. Let’s see the legislature repair the damage with a new rewrite.

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