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Daily Progress sues UVa after school withholds review of fatal 2022 shooting

A Daily Progress reporter who has repeatedly sought access to a fact-finding report on the 2022 shooting that killed three University of Virginia students has won a legal victory over a team of lawyers that UVa has hired to shield the report from public view.

Last month, a judge rejected UVa’s effort to dismiss the petition filed by reporter Jason Armesto, the Daily Progress and the newspaper’s parent company Lee Enterprises and greenlighted the matter for trial later this summer.

“We’re happy to see this case move forward, and we remain confident in the merits of our case,” said Daily Progress editor Reynolds Hutchins. “Almost a year and a half ago, three University of Virginia students were killed, two others were injured and a community was placed under lockdown while authorities hunted down a suspect considered armed and dangerous. In the aftermath, the university promised the victims’ families, the survivors and the public a thorough and professional external review of the events that took place. As a newspaper of record, it is the responsibility of The Daily Progress to hold higher powers accountable. We ask that the University of Virginia keep its promise.”

In February, after UVa officials rejected two Freedom of Information Act requests for the document, Armesto filed a petition for writ of mandamus, a court order that would force a public official to take action, which in this case would mean releasing the report.

UVa pushed back with a demurrer, a legal filing essentially telling Armesto that he doesn’t have a claim, even if everything he alleged was true.

“Simply put, mandamus does not,” wrote UVa-hired lawyer Jack L. White, “compel a public official to perform a discretionary act.”

However, in an April 11 opinion letter, the designated judge, Richmond-based Melvin R. Hughes, disagreed.

“Petitioner’s demurrer is overruled,” Hughes wrote.

That ruling allows the fact-finding legal discovery process to resume, and the case has been set for trial on June 21 in Albemarle County Circuit Court.

This is welcome news to Megan Rhyne, director of the Virginia Coalition for Open Government, a nonprofit alliance formed to promote expanded access to government records, meetings and other proceedings.

“We are encouraged that this is being pursued,” Rhyne told The Daily Progress. “We have said at the outset that the report should be released in a redacted form if not the entire report.”

Virginia law requires redaction over withholding, and Attorney General Jason Miyares conveyed his interest in creating a redacted version when, a month after the slayings, he hired the international law firm Quinn Emanuel Urquhart & Sullivan to produce the review.

“Understanding that certain information must be maintained as confidential and that certain information may have to be maintained as privileged in case of actual or threatened litigation resulting from the tragedy, a version of the report with appropriate exclusions will be prepared for the public,” reads a portion of the attorney general’s engagement letter.

That contract called for paying firm partners William Burck $1,704 per hour and Crystal Nix-Hines $1,416 per hour. The total cost came to $1.5 million.

Despite vows from Miyares, UVa Rector Robert Hardie and UVa President Jim Ryan that the review’s conclusions would be shared publicly, Ryan announced a shift in November of last year, roughly a month after he was handed the completed report.

“After conferring with counselors and Albemarle County Commonwealth’s Attorney Jim Hingeley,” Ryan wrote in a statement, “we have decided that we need to wait until after the criminal proceedings to release further information.”

The criminal proceedings against accused gunman and former UVa student Christopher Darnell Jones Jr. are not expected to begin until January of 2025. And there is still no guarantee that the university would provide the report after the trial came to a close, whenever that might be.

By filing an additional information request, this one sent to Hingeley, who is overseeing Jones’ trial, Armesto learned that the meeting between the prosecutor and UVa officials was not planned by Hingeley. Instead, Armesto learned that Hingeley was beckoned three days before Ryan’s announcement with “a fairly urgent request” to meet with Ryan, UVa Police Chief Tim Longo and UVa Chief Operating Officer J.J. Davis. Longo told Hingeley via text message that the meeting was requested by Ryan.

“There is no blanket exemption that allows a public body to withhold documents based on the potential impact their release would have on a criminal proceeding,” Armesto’s petition notes.

The Daily Progress reached out to both UVa and Hingeley, but neither would comment for this story.

A notable component of UVa’s legal argument is an expansive view of FERPA, the 1974 Family Educational Rights and Privacy Act. Under UVa’s interpretation, as expressed in its demurrer, the federal law makes the entirety of the review off-limits to the public because it mentions the murder suspect.

“FERPA precludes disclosure of the entirety of these reports,” UVa’s lawyer’s wrote, “as these reports cannot be redacted in a manner that would prohibit a person from identifying the student who is the subject of these reports.”

Hughes, the judge, took particular issue with that interpretation, pointing to passages in a March 18 filing by Armesto and the newspaper that indicate that only a central authority, such as a registrar, falls under FERPA.

“Emails between professors and administrators are not education records because they are not held by a central custodian,” the newspaper’s lawyers noted.

The night of Nov. 13, 2022, students were on a charter bus returning to Grounds after a field trip to Washington, D.C., when gunfire broke out inside the vehicle. The gunman killed Lavel Davis Jr., Devin Chandler and D’Sean Perry, all of whom played on the school’s football team, and injured two others, Mike Hollins and Marlee Morgan. The manhunt for the killer put UVa Grounds and the city of Charlottesville under lockdown for hours and shattered a peace just barely established after academic years marred by pandemic and protest.

Shortly after the shooting, UVa officials revealed that they hadn’t realized that the suspect, Jones, had failed to notify the school that he’d been recently convicted of a crime. An additional revelation was that the university failed to fully investigate after a student alleged that Jones kept a gun on Grounds in contravention of school policy.

A post-shooting search of Jones’ Brandon Avenue dormitory found a semi-automatic rifle, pistol, ammunition, magazines and a device used to make bullets fire faster, according to a search warrant inventory obtained by The Daily Progress.

For the loved ones of those killed and injured, the lack of information is particularly painful, according to Michael Haggard, a Florida lawyer who represents three of the victims’ families.

“They sit here years later with absolutely no answers,” said Haggard. “You go back in time and the university and the state of Virginia say we’re going to get answers for these families and the UVa community, and everyone’s sitting there saying, ‘When are we going to find out?’”

He said releasing the external review is not just a matter of emotional closure but of safety.

“It could happen at Georgetown, it could happen at North Carolina. Every college student is at risk, and if UVa has found some things out, share it with everyone,” said Haggard. “The families are thankful to the press for pushing this.”

Source: www.dailyprogress.com

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