A seemingly decided legal dispute between Richmond Mayor Levar Stoney’s administration and one of its most persistent critics could be headed to the Virginia Supreme Court, exasperating members of the City Council.
In June, a Richmond Circuit Court judge ordered the city to release documents tied to the $1.5 billion Coliseum redevelopment plan in response to a Freedom of Information Act request filed earlier this year. The Stoney administration first denied the FOIA request, then fought in court to keep the documents secret. It ultimately lost the case and agreed to release more than 2,000 records to Paul Goldman.
Seeking to overturn what it views as a misguided precedent that conflicts with existing case law, the Stoney administration filed a petition last week to appeal the Circuit Court’s order to the state’s highest court. News of the appeal caused a stir at the Richmond City Council meeting Monday, as council members expressed frustration that the mayor’s administration was pursuing it.
“I’m disappointed the administration would want to appeal something that’s already been adjudicated,” said Council Vice President Chris Hilbert. “When a FOIA case is decided, documents have already been turned over, the time for litigation is over.”
In a filing dated Sept. 5, a lawyer representing the Stoney administration acknowledged the administration had complied with the original order despite disputing the judge’s reasoning.
“The city acknowledges there exists no active controversy between the parties in this case. … Notwithstanding that the case appears moot, the city urges this court to grant this petition and consider the merits of the underlying dispute,” according to the filing.
A Stoney spokesman declined to comment on the filing, calling it “active litigation.”
Goldman is a former head of the Democratic Party of Virginia and, more recently, a former law partner of Joe Morrissey, a onetime political opponent of Stoney.
Goldman has tangled with Stoney on several occasions during his tenure as mayor. Goldman’s bid to obtain records about the massive downtown redevelopment plan coincided with a petition drive he led to put a question on the November ballot that could stymie the project. The general registrar found that the petition drive fell short, but Goldman is appealing the matter in Richmond Circuit Court.
Asked whether he thought the appeal was motivated by personal reasons, Goldman declined to answer, before saying: “It’s most unusual to appeal a moot case.”
In its filing, the administration lays out issues it said demonstrated how the Circuit Court ruling broke with existing case law.
The Stoney administration believed it could keep the documents secret under a carve-out in the state’s open records law that allows public bodies to withhold documents pertaining to ongoing negotiations. The discretionary exemption is aimed at protecting the bargaining position of the public body.
The Stoney administration applied the exemption to several FOIA requests that sought records about the project during the 18 months of closed-door talks between the city and NH District Corp., the group led by Dominion Energy CEO Tom Farrell II that submitted the plans.
The filing argues that by siding with Goldman, the Richmond Circuit Court weakened the exemption, an outcome that could lead to other localities having to disclose documents pertaining to ongoing negotiations.
“The issues presented in this case are very likely to recur, not just for the city, but other bodies subject to FOIA,” the city’s filing states. “There are and will be negotiations during which bodies desire to keep matters confidential.”
Another issue that arose during the case: The city had provided the same documents Goldman requested to the Richmond Times-Dispatch a year earlier. When Goldman requested them, the administration said it would cost $1,800 more than it charged the newspaper.
The Circuit Court ordered the city to give Goldman the documents it had provided the newspaper for an amount in line with what the newspaper paid. The judge pointed to the prior release as justification for his ruling.
The city objected to that rationale at the time and reiterated its stance in its appeal to the Supreme Court. The records first given to the newspaper were not vetted, the Stoney administration has said. Ordering the release of the same documents based on their prior release curtailed the city’s ability to decide which ones could be withheld under exemptions in the law, the administration’s filing states.
In an unusual move, Councilman Parker Agelasto on Monday dictated a resolution to the city clerk midmeeting stating the council’s “displeasure” with the appeal. The full council suspended its rules to add the resolution to its agenda, then endorsed it as a part of its consent agenda.
Agelasto said the appeal is a waste of money. He sharply criticized City Attorney Allen Jackson, a council appointee, for not notifying the council of the appeal prior to Monday. After the original decision in June, the council held a closed session on the matter and walked away with the impression the matter was settled, he said.
“We are expending city taxpayer dollars every day on hiring our own people or external lawyers to litigate something that the council doesn’t think should be litigated,” Agelasto said.
A hearing is not yet set in the matter.