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City argues Kessler public records lawsuit has no standing

Counsel for the city of Charlottesville argued Wednesday in Charlottesville Circuit Court that Unite the Right organizer Jason Kessler does not have standing to bring a lawsuit against the city and several current and former officials.

Kessler’s latest lawsuit claims that the city improperly deleted text messages about the rally sent by former City Manager Maurice Jones and former Police Chief Al Thomas.

Jones and Thomas are named as defendants along with the city and city spokesman and FOIA officer Brian Wheeler.

The suit was filed after Kessler read about text messages between former Mayor Mike Signer and Jones in Signer’s recent book about the 2017 rally. The rally turned violent and ended in the death of Heather Heyer, when Ohio resident James A. Fields drove his car into a group of anti-racism marchers.

Fields was convicted of first-degree murder and sentenced to life in prison for the crime.

Kessler’s 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 November, an earlier FOIA-focused complaint went to trial in Charlottesville General District. During testimony, Wheeler claimed that he had been informed by Jones’ executive assistant that the former city manager’s cellphone had been wiped in preparation for then-incoming City Manager Tarron Richardson. This was consistent with city policy, Wheeler said.

A general district court judge ruled that it could only enforce the production of documents that existed and largely dismissed the lawsuit since no responsive documents existed. Kessler revived and expanded the lawsuit in December to incorporate Public Records Act arguments outside of the general district court’s jurisdiction.

Among other things, the lawsuit requests an order directing the city to attempt to gather date from deleted text messages and bar the city from deleting texts from city officials in the future.

On Wednesday, Kessler sat masked with a blue bandana as his attorney, Andrew Bodoh, author of “The Virginian’s Guide to FOIA,” addressed a demurrer from the city respondents.

The nearly four hour hearing delved into the highly technical nature of Virginia’s FOIA and PRA laws and the parties’ competing ideas of how they should be interpreted.

Representing the city, attorney Elizabeth Southall argued that Kessler had no grounds to declaratory, injunctive and mandamus relief given the language of the records laws.

Much of Southall’s argument on standing centered on a recent Richmond case filed after Mayor Levar Stoney ordered the removal of various Confederate statues in the city of Richmond.

That lawsuit, filed by an anonymous resident of the area, briefly resulted in an injunction barring Stoney from ordering more monuments. However, the injunction was thrown out in August by the Supreme Court of Virginia, which ruled that the anonymous plaintiff had no legal standing to file suit because they “failed to allege a potentially viable right of action.” This was due to a recent rewriting of the law that removed private right to action, leaving that up the the city government instead.

Similarly, Kessler has failed to allege a potentially viable private right of action, despite his claims that the texts could help him in rally lawsuits where he is a defendant, Southall said. Kessler has no more right to file FOIA requests than any other resident of Virginia, she said, and has no right of action under the PRA.

“I think the Stoney case is more than enough to show us that Mr. Kessler has no right of action under either the PRA or FOIA,” Southall said. “If there was a private right to action then Kessler would have standing but that is not the case.”

Southall also argued that, per the legislation passed by the state General Assembly, PRA enforcement is a power left exclusively up to the Librarian of Virginia and is guided by a “best practices statute” intended to be more guiding than punitive.

“Maybe [the General Assembly] should have done a better job with it but this is what we’re stuck with,” she said. “We should not be trying to legislate issues in court, that’s not our role.”

Responding to Southall’s arguments, Bodoh argued that his client was not asking the court to legislate an issue and that the enforcement powers of the Librarian of Virginia are in addition to implied private rights of action.

Additionally, Bodoh argued that, when interpreted together, the FOIA and PRA code sections made it clear that Kessler has a right to action because he was impacted by improper retention of documents.

“He has a right to all public texts whether or not he’s actively exercising that right,” Bodoh said. “The respondents are trying to separate PRA and FOIA, but the Virginia code is a single act and is intended to be read as such.”

During both parties’ arguments, Charlottesville Circuit Court Judge Richard E. Moore occasionally interjected to seek clarity on various arguments. A sticking point for Moore appeared to be whether documents that had been deleted but may still exist as data, as may be the case with Jones’ deleted text messages, could be considered recoverable.

Moore thanked the attorneys for their thorough arguments and indicated he likely would not be able to issue an order on the respondents’ demurrer until the end of February.

An injunction issued last month 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 was extended 60 days, pending the results of Moore’s ruling.


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