Unite the Right organizer Jason Kessler has revived a Freedom of Information Act lawsuit, filing the latest iteration in Charlottesville Circuit Court and expanding his claims.
Kessler, the primary organizer of the 2017 white nationalist rally, has filed several lawsuits against the city in years past, mostly centered around alleged violations of his constitutional right to free speech.
In October, Kessler filed a complaint in Charlottesville General District Court alleging that city spokesman and FOIA officer Brian Wheeler violated FOIA law in 2019 by not providing Kessler with text messages and emails he requested from Maurice Jones, who was the city manager at the time of the rally.
Kessler based the alleged violation on a transcribed text message exchange between Jones and then-Mayor Mike Signer detailed in a book written by Signer. Released earlier this year, “Cry Havoc: Charlottesville and American Democracy Under Siege” is Signer’s account of the Summer of Hate, detailing much of the time around the rally.
The complaint went to trial in November. 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.
Kessler argued that, per the Virginia Public Records Act, the city should have preserved the text messages, as they were public documents that may have contained information critical to several ongoing lawsuits.
At the end of the hearing, Judge Robert Downer granted Kessler compensation for some court expenses but said the court was limited in FOIA enforcement remedies and could not enforce the Public Records Act, which falls under circuit court jurisdiction.
Compensation was granted because Wheeler said he had misread Kessler’s initial March 2019 FOIA request, which requested emails in addition to text messages. More than 1,000 pages were produced and given to Kessler the week of the trial and included some text messages uncovered by Signer.
With his General District Court options exhausted, Kessler filed an expanded version of the lawsuit in Charlottesville Circuit Court on Friday. Specifically, the lawsuit requests that the court find that the city violated both the Freedom of Information Act and the Public Records Act by not preserving public records in the form of text messages.
Wheeler and Jones are both named as defendants, as is Al Thomas, who was the city’s police chief at the time of the rally.
Bereft of a way to enforce the PRA, Kessler requested a mandamus — a judicial order telling a public body to perform a specific action — be issued that would require the respondents to recover the text messages through various means, including from the phones of third parties who may have texted Jones, and to develop a policy for retaining text messages.
To bolster his argument, Kessler cited that a public document is defined by the PRA as “recorded information that documents a transaction or activity by or with any public officer, agency or employee of an agency. Regardless of physical form or characteristic, the recorded information is a public record if it is produced, collected, received or retained in pursuance of law or in connection with the transaction of public business. The medium upon which such information is recorded has no bearing on the determination of whether the record is a public recording.”
Per the PRA, public records cannot be destroyed before the end of a two-year retention period unless a certificate for records retention and destruction has been completed and approved. The city applied for no such certificate before Jones’ text were destroyed, Kessler’s complaint argues.
However, per the Library of Virginia, the correspondence from public officials that need to be kept for two years includes “incoming and outgoing letters, memoranda, faxes, notes, and their attachments, in any format, including, but not limited to, paper and email.” Text message retention is not specifically mentioned.
Kessler has requested a hearing within seven days of filing, as permitted under the Freedom of Information Act.