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Kessler FOIA lawsuit largely dismissed

In the weeks before Jason Kessler went to trial for his role in planning the Unite the Right rally, the key organizer’s related Freedom of Information Act lawsuit against Charlottesville and several former officials was largely dismissed.

Kessler, the primary organizer of the 2017 white supremacist rally, has filed several lawsuits against the city in recent years, most of them centered around alleged violations of his constitutional right to free speech.

The organizer himself was taken to trial beginning in October for allegedly conspiring to commit racially motivated violence at the rally. A federal returned a deadlocked verdict on Nov. 23 against Kessler on the federal conspiracy claims, but did find that he and various other defendants conspired via more general state claims, and ordered him to pay $700,000 in damages.

However, just as the federal trial was gearing up, Kessler’s own Freedom of Information lawsuit was largely dismissed by a Charlottesville Circuit Court judge.

In October 2020, Kessler filed a complaint in Charlottesville General District Court alleging that now-former city spokesman and FOIA officer Brian Wheeler violated FOIA law in 2019 by not providing Kessler with text messages and emails he requested from Jones, who was the city manager at the time of the rally.

That lawsuit was largely dismissed in November of that same year after a judge determined that no responsive documents existed and other forms of relief were outside of the general district court’s jurisdiction. The city was ordered to pay Kessler’s court costs for failing to turn over some responsive documents in a timely manner.

Kessler revived the lawsuit in December 2020, this time in Charlottesville Circuit Court, and again named as defendants Jones, Wheeler and former city Police Chief Al Thomas.

The lawsuit argued 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.

After an April hearing, the lawsuit languished as Charlottesville Circuit Court Judge Richard E. Moore took time to consider the arguments and issue an opinion. During the hearing, attorney Elizabeth Southall, who represented the city, said that a phone used by Jones previously thought to have been wiped had been uncovered and may still contain documents. It is unclear what has developed in regards to this discovery in the months since.

Almost six months after the previous hearing, in October Moore issued a letter of opinion that largely dismissed the lawsuit, parties and any form of requested relief sought by Kessler. Moore’s order was formally signed on Nov. 16.

The lengthy letter addressed many of the complicated aspects of the lawsuit, including the Public Records Act, which the city general district court had ruled only the circuit court had jurisdiction over. In spite of this, Moore wrote that Kessler did not have a right to bring an action under the Public Records Act, which does not offer the right of private action.

“It clearly has an administrative purpose — and seems, in fact, totally administrative and procedural — for the benefit of the good operation of the state government and its agencies and (unlike FOIA) not for the benefit of individual citizens themselves,” Moore wrote.

However, Moore wrote that FOIA law was different and does offer the right of private action. This right was complicated by Kessler admittedly not seeking the release of documents in his circuit court lawsuit, Moore wrote, but only a statement that such documents should not have been destroyed.

“If they were destroyed, then they do not exist, as believed, and are not subject to VFOIA. If they do exist, they are subject VFOIA, but have not been asked to be turned over in this proceeding,” Moore wrote, later adding “Some matters of community interest have only political remedies.”

Additionally, Moore dismissed the action against Thomas and Jones because they were not custodians at time of the lawsuit. Moore also dismissed Wheeler because, in light of the lack of private right to action, the judge wrote that it did not matter who was the custodian of the records.

Further complicating the lawsuit is the city’s argument centering around the legal principle of “res judicata,” which Moore wrote prevents a case from being resurrected outside of appeal if there is already a final decision.

Citing the 2020 Charlottesville General District Court decision which prompted this separate by related lawsuit, Moore wrote that Kessler is not permitted to seek another remedy in another court based on the same alleged FOIA failure.

“We do not allow for trying a case piecemeal,” Moore wrote. “We do not allow parties to try part of a cause, and then come back with further claims against the same parties regarding the same subject matter on a different day, on different theories or claims, or allow one claim in one court and, if one loses (or wins), to file and pursue another related claim in another court.”

Despite largely dismissing the lawsuit, Moore wrote that Kessler would be allowed to re-plead the FOIA claim within 21 days of the Nov. 16 order. This re-pleading would be limited to the subject of text messages that exist currently, even in a deleted form, Moore wrote.

“To me it is no different than if paper records were torn up and thrown in a trashcan but had not been taken out to the garbage yet,” Moore wrote. “I believe that deleted documents, if recoverable in the city’s system or on its hardware, are still in the possession of the custodian.”

It does not appear that Kessler has yet attempted to re-plead the FOIA claims.


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