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Latest Kessler lawsuit claims city violated FOIA law

In a new lawsuit, Unite the Right rally organizer Jason Kessler is alleging that portions of former Charlottesville mayor Mike Signer’s book indicates the city violated Freedom of Information Act law.

Kessler, the primary organizer of the deadly 2017 event, has filed several lawsuits against the city in years past, mostly centered around alleged violations of his Constitutional right to free speech.

This latest lawsuit, filed on Oct. 23 in Charlottesville General District Court, alleges that Charlottesville spokesman and FOIA officer Brian Wheeler violated the law by not providing Kessler with text messages he requested from Maurice Jones, the city manager of Charlottesville at the time of the rally.

Per the lawsuit, Kessler bases this alleged violation on a transcribed text message exchange between Jones and Signer detailed in Signer’s book.

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.

Kessler’s lawsuit cites portions of the book that he argues provide evidence of communications that are subject to FOIA law. The text exchange, as detailed in Cry Havoc, is a timestamped exchange between Signer and Jones as they attempted to coordinate the day of the rally.

“At 11:19 a.m., I sent Jones a text saying, ‘I need to come up to Wells Fargo. Won’t be in your way but I need to be here.’ He responded, ‘I’m concerned about your safety getting here,” a cited portion of Signer’s book reads.

“At 11:40 a.m., I responded to Maurice Jones: ‘Al works for you. You have barred me from the center. We are not together. I don’t know what’s happening. We are not unified. We can’t say no comment or it has to wait. I’m at city hall.’ Jones responded, ‘It has to wait. We have to let this play out for a bit before going in front of the Cameras.’”

“At 4:09 p.m., I sent Jones a text: ‘We are headed to command center now. Conclusion of principals and policy group was we needed to be onsite to develop message and framing. Obviously will need to be able to come in.’”

Signer could not be reached for comment on the lawsuit.

Prior to the release of the book, Kessler claims he submitted a written FOIA request to Wheeler on April 25, 2019, seeking “emails and text messages sent and received by Maurice Jones on August 11 and 12, 2017”

Wheeler asserted that, “The City of Charlottesville has no record responsive to that request,” and did not cite any FOIA exemptions, according to Kessler’s complaint.

Kessler requested an expedited court hearing, which occurred Tuesday afternoon in Charlottesville General District Court. According to court documents, during the brief hearing counsel on behalf of Wheeler requested Kessler file an affidavit, as required by law, and then a judge continued the hearing. Another hearing is scheduled for Nov. 30.

Text messages about public business, such as responses to the Unite the Right rally, would be subject to FOIA, according to Megan Rhyne from the Virginia Coalition for Open Government. As with any records subject to FOIA, the texts could still be exempt or redacted, she said.

However, FOIA only applies to records that exist at the time the request is made, Rhyne said in an email.

The Library of Virginia under the Public Record Act does provide a record retention schedule, she said, and the Library also publishes guidance on social media and alternate communication, including text messages. The Public Records Act does not have any enforcement mechanism, not for the LVA, not for the public or anyone else, according to Rhyne.

“What does that mean? It means that if the record (text message) has been deleted prior to the FOIA request then there’s no responsive record to provide,” she said.

Though a provision was added to FOIA in July 2019 that takes premature destruction into account, its effective date is after the dates listed in this lawsuit.

If an official or governing body does not turn over documents that are responsive to FOIA they can be fined Rhyne said, pointing to a recent lawsuit against Del. Eileen Filler-Corn, D-Fairfax Station.

According to court documents, the speaker of Virginia’s House of Delegates was sued in August not long after she ordered the removal of a bronze statue of Confederate General Robert E. Lee and busts of Confederate President Jefferson Davis and generals Stonewall Jackson and J.E.B. Stuart be taken out of the Old House chamber.

Northern Virginia lawyer David Webster filed a FOIA request seeking information about how the decision to remove the artifacts was made, how the removal company was hired, and emails involving the speaker. When Filler-Corn said she had no responsive documents, he filed a lawsuit and in October the speaker was ordered to pay a $500 civil fee.


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