Apparently, freedom of speech and freedom of the press doesn't apply to me...

On March 6, 2019, I submitted a FOIA request to the city of Charlottesville for email communication between Washington Post reporter Ian Shapira and Charlottesville Police Department Officer Declan Hickey. I also requested any emails between Shapira and Charlottesville Police Department Public Information Officer Tyler Hawn. The idea for the request stemmed from Shapira's recent article for the Post related to the Charlottesville Police Department's renewed search for two attackers of Deandre Harris on August 12, 2017. In the article, Shapira mentions an interview of Officer Hickey. I wanted to see if any additional details related to this story could be gleaned from emails between Shapira and city officials and law enforcement. The response to my request was somewhat unexpected, but not surprising.

On March 13, 2019, Public Information Officer Tyler Hawn responded to my request by releasing a single email. Surprisingly, Hawn stated that approximately 5 additional emails were being withheld entirely. This is actually quite shocking. The emails are either from or to a national news reporter. Any information released or communicated to a reporter is public information. What is even more surprising about the exemption is the stated reason for the exemption. Hawn claims that the emails are considered "criminal investigative files". Whatever information is now being withheld has already been released. That alone is a story. The unsurprising part of the response is what came next. After making requests and having public information released to me for several months, Hawn asked me to verify residency, which CAN be required under FOIA law. 

Of course I complied with Mr. Hawn's request honestly and revealed that I am not a resident of the state of Virginia. I want to be clear, I have no problem with any denial based upon my status of residency, but my residency is not the issue. Mr. Hawn DID NOT also ask if I was a journalist with circulation in the state of Virginia, which according to the same passage of Virginia FOIA law allows the release of public information to requesters who fall into that category. It is unclear to me why I was asked about my residency status by Mr. Hawn, but not if I was a journalist representing a newspaper or magazine with circulation in the state of Virginia. I pressed Mr. Hawn on the issue.

Mr. Hawn responded by copying the pertinent passage of the Virginia FOIA law and highlighting the passage pertaining to my inquiry. Just as I already knew to be the case, public records are not open only to residents of the state of Virginia. If you are a representative of newspapers or magazines with circulation in the Commonwealth, FOIA law provides that the custodian of records can legally release public information to you. I fall under this category as a representative of an online magazine with no print component.

I responded to Mr. Hawn by making my case for the continued release of public information to me for use on my non-commercial online magazine to inform the citizens of the Commonwealth about topics of interest to Virginians free of charge. Due to financial constraints, I am not able to print my journalistic content and distribute it in the state of Virginia physically. Reality is that journalism in the age of the internet is no longer confined to physical print. A great many print publications have ceased printing their work entirely, and only offer their content in an online format. Others, such as myself don't readily have the resources available for mass printing and distribution of our writing. Certainly, there can't be two separate sets of requirements for print journalists versus those publishing online, can there? 

Mr. Hawn did not respond to my follow-up email. Hawn never addressed whether or not I was still able to make requests and receive public information. After thinking over the exemption of the 5 emails overnight it dawned on me how absurd this exemption was. Whatever they don't want us to know, Ian Shapira apparently knows. Additionally, the exemption seems overly broad. Information is only supposed to be redacted entirely when ALL of the information MUST be withheld. Without knowing what exactly is being withheld, it's not likely that all of the information contained in the emails needs to be redacted entirely. It seems like a real stretch to believe that the emails could not be redacted with a scalpel, rather than a hatchet. I kindly asked Mr. Hawn to reconsider the redactions and release the information in full.

For reasons unknown to me, the Public Information Officer for the city of Charlottesville, Brian Wheeler responded that he (not Tyler Hawn) had reviewed my request for reconsideration of the exemption. Mr. Wheeler reiterated to me that the approximately 5 emails are still considered "criminal investigative files" and will not be released. 

At this point, I still have not been explicitly told whether or not I am able to continue to make requests and receive information in response to future or current requests. I had 3 other current requests that I had yet to receive responses to. I inquired about the current status of my ability to continue to make requests and also the status of my current requests. I politely asked if they could respond to each request individually.

Again, Mr. Wheeler, not Mr. Hawn responded to my inquiry. In his response, Mr. Wheeler correctly stated that the Virginia Freedom of Information Act does not define the term "circulation" and stated that the Code of Virginia "provides circulation requirements" for "newspapers" (but according to Wheeler and the actual legislation, doesn't mention magazines) of ""general circulation" in a specific area wishing to advertise notices required by the Code of Virginia." FULL STOP. My outlet is an online magazine, not a newspaper. I am not "wishing to advertise notices". What exactly does this passage of law have to do with me or this situation? It seems the answer is nothing. The city of Charlottesville is trying to apply language from separate legislation that does not appear in the Virginia Freedom of Information Act and enforce this language as a means to stop me from making requests and receiving public information which I would offer freely to residents of the state of Virginia. I want to say in no uncertain terms, I consider this to be a blatant infringement of my Constitutionally protected rights. Wheeler then goes on to require that I do a bunch of other stuff before they'll even consider whether they still won't let me make requests or receive information before jumping through even more hoops. Cute. To say that this is creative would be generous. 

Finally, Wheeler sent responses to my 3 current FOIA requests stating that they are unable to determine that I am eligible to make a FOIA request. 

The requirement the city of Charlottesville is enforcing in an apparent attempt to block me from making future requests falls under Chapter 8, Process, in the Code of Virginia. It specifically ONLY mentions newspapers. 

This language doesn't apply to me or this situation AT ALL. This legislation only applies to newspapers, and only when "any ordinance, resolution, notice or advertisement is required by law to be published" within said newspaper. 

Interestingly enough, they are not arguing that I am not a journalist or a representative of a magazine. They have staked out a specific argument in their denial. They are requiring that I have to jump through additional hoops to prove that my writing (which you are likely reading this very instant inside the borders of the state of Virginia) has circulation within the state of Virginia. This requirement is an undue burden on me. Curiously, a separate request made to an entirely different public body resulted in the exact same challenge on my residency status. As in this instance, I truthfully gave my legal address. When I challenged that public body on my status as a journalist, unlike the city of Charlottesville, they relented and provided the documents I was requesting stating that I had sufficiently proven that I had circulation in the state of Virginia. It certainly does seem to show the difference in treatment of the same or very similar circumstances by two different public bodies operating in close proximity to one another. One could speculate that this is a personnel related issue...

Luckily, I do have options for recourse. First, I am going to email them to notify them that this requirement is absurd and does not apply to me. I am going to ask them to reconsider this foolish and lame-brained denial, and ask them to provide the documents. 

Depending upon their response to my request that they reconsider and provide the documents requested, I will reach out to the Virginia Freedom of Information Advisory Council for a non-binding advisory opinion on this matter. 

I'm unsure of what action I might take following an advisory opinion, but there are apparently options available to consider. I am sure that the State Literary Fund could certainly use a boost!

Lastly, I just want to say that I have no hard feelings towards Tyler Hawn or Brian Wheeler. I understand that they are just doing what they get paid a heck of a lot of money to do. That apparently being, confounding the public by doing everything in their power and allowed by law (and sometimes not) to keep the information that is paid for and belongs to you, from you. I think they were both excellent choices for Public Information Officers, due to their prior backgrounds in media. Well played Charlottesville. In the meantime, I will press on. Multiple Virginians have already offered to submit requests for information in their own name on my behalf, a gesture I certainly appreciate!