A Charlottesville judge on Monday ordered the city to neither destroy nor delete any communications to and from a former city manager and a former police chief regarding the Aug. 12, 2017 Unite the Right rally until the merits of a Freedom of Information Act lawsuit can be tried in court.
Circuit Court Judge Richard E. Moore said he wants the city to preserve any communications that may still exist until the lawsuit, filed by Unite the Right organizer Jason Kessler, comes for trial or is dismissed.
Kessler is suing the city under the information act, requesting the deleted text messages and emails about the rally made by former City Manager Maurice Jones and by former Police Chief Al Thomas.
He filed the suit after reading about text messages between former Mayor Mike Signer and Jones in Signer’s recent book about the Aug. 12 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.
“If any of these documents covered in [Kessler’s] information request do exist, if in the process any of them are discovered, [the city] is not to delete, destroy or otherwise conceal them,” Moore said. “I do not want anything that now exists, even if we don’t know that it exists, I don’t want it to be deleted.”
Kessler is basing the suit on requests he made in 2019, prior to Signer’s book being released. Those requests were turned down because the documents no longer existed.
Kessler is asking for the deleted contents to be recovered and released. He noted that a review of the Aug. 12 rally revealed that Thomas and police administrators had text messages and communications about the rally deleted before the review took place.
Jones’ cell phone was wiped clean of information after he left, city officials have said, but others may still have copies of the messages.
Text messages about public business, such as responses to the Unite the Right rally, would be subject to FOIA, according to the Virginia Coalition for Open Government. As with any records subject to FOIA, the texts could still be exempt or redacted.
The Library of Virginia under the Public Record Act publishes guidance on retaining documents and records and procedures and timelines for destroying them. That includes social media and alternate communication, including text messages.
The Public Record Act does not have any enforcement mechanism, however.
Elizabeth Southall, of Zunka, Milnor & Carter, is representing the city and argued that the city has no responsibility under FOIA to reconstitute any messages that were deleted but may still be available on computers or devices.
She argued that regular document destruction schedules and the number of people and devices that could possibly contain information made it difficult to assure existing but unknown documents would not accidentally be destroyed.
“The city is not required to recreate a document,” she said. “Once it’s deleted, it is gone, even if it is still somewhere on the computer.”
She said she would not bind her clients to protecting documents that may no longer exist and argued that Kessler’s lawsuit was without merit and that he lacks legal grounds to sue the city.
Moore said that he was not judging the merits of Kessler’s case, but that he wanted to make sure that should any new messages or documents be found prior to the next hearing, they would not be destroyed by the city.
“If they don’t even know if documents exist, why would they city not agree? I’ve seen it happen over and over again that evidence that was believed to not exist was found somewhere,” Moore said.
“I would think that anyone from second grade to 80 years old would look at this say [preserving documents that may be found] makes sense. Good deal,” Moore said. “If there’s something that’s been deleted in the past, there’s nothing we can do. But if they do find something, we shouldn’t do anything to make less available.”
Moore scheduled a 9 a.m. hearing on Jan. 20 to listen to Kessler’s reasons for the lawsuit and the city’s reasons for throwing it out.