A Henrico County Circuit Court judge on Wednesday reversed a ruling he issued in June, saying he made a mistake when he wrote that Virginia’s Freedom of Information Act applied only to public bodies and not to individual officials.
Judge James S. Yoffy announced the reversal at the request of a Loudoun County resident, Brian C. Davison. He had filed paperwork in court arguing that state Sen. Siobhan S. Dunnavant, R-Henrico, violated FOIA by not responding to a request he made in January within the five-day window required by law, and by not turning over records he asked for from her Facebook page.
“I was in error and I reverse my ruling,” Yoffy said from the bench.
If an individual believes a government official has violated FOIA, the resident can take the official to court, where a judge will hear evidence and decide.
Yoffy’s previous ruling worried open-government advocates. He was agreeing with lawyers for Dunnavant that Davison should have gone to court against the entire state Senate — not Dunnavant individually — over the FOIA request.
Megan Rhyne, the executive director of the Virginia Coalition for Open Government, said after Wednesday’s hearing that she was relieved by the judge’s change of mind.
After announcing his decision, the judge presided over a hearing lasting more than half the day about whether Dunnavant violated FOIA. He ruled that she did not.
Davison is a citizen activist who urges government officials to preserve social media posts that contain public records. When he heard that Dunnavant was deleting posts on her “Senator Siobhan Dunnavant” Facebook page, he posted a comment in January on her page about the issue. Dunnavant’s husband, who had access to the Facebook page, deleted the comment.
Davison sent an email to Dunnavant’s office with the FOIA request, asking for copies of any comments made under a statement she had posted about her Facebook policy. He and others had posted comments on the statement. In court, Davison said that there potentially could be comments that he was blocked from seeing that Dunnavant would be required to turn over through a FOIA request.
Dunnavant and her staff did not respond to Davison’s FOIA request, which Dunnavant said was the first FOIA request she had received as a senator.
Dunnavant, who took office in January 2016, testified that senators were instructed during FOIA orientation training not to respond to FOIA requests but to send them to the Virginia FOIA Advisory Council and that the council would respond. The FOIA Advisory Council is a panel that studies FOIA and issues advisory opinions.
Dunnavant said she believed the training was provided by Maria Everett, the previous executive director of the FOIA council, who recently retired from state government.
“I believed that I had done what I was supposed to do in sending it to the FOIA council,” she said of Davison’s FOIA request. She said her staff forwarded the FOIA request to Everett. The email was forwarded with no further instruction or question.
Everett declined to comment when reached by phone Wednesday.
The FOIA Advisory Council has offered to help lawmakers with FOIA requests. When asked Wednesday if the council tells state lawmakers that it will respond to FOIA requests for them, the current executive director, Alan Gernhardt, and Mark Vucci, the state’s director of legislative services, declined to comment.