After months of delays and nearly three years after the Unite the Right rally, Virginia State Police counsel is expected to respond this week to a judge’s order that a release of their rally operations plan was overly redacted.
Soon after the Aug. 12, 2017, rally, reporters Natalie Jacobsen and Jackson Landers — represented pro bono by attorneys from the Reporters Committee for Freedom of the Press — sued the city of Charlottesville, state police and Virginia’s Office of the Secretary of Public Safety and Homeland Security for access to city and state police plans for the rally.
Police were widely criticized for their response to the white supremacist rally, which ended with the murder of counter-protester Heather Heyer and the deaths of two VSP officers in a helicopter accident.
In the complaint, Jacobsen and Landers said they were told their Freedom of Information Act requests were denied because the records contained tactical plans and could endanger law enforcement personnel if they were made public.
The legal saga has been plagued by disagreements between the parties over which parts of the plan should be redacted and, more recently, by delays caused by the coronavirus pandemic.
The state police now have until Thursday to respond to a Charlottesville Circuit Court judge’s ruling that portions of the report released to the complainants are overly redacted.
In March 2018, the city agreed to give Jacobsen a redacted copy of the Charlottesville Police Department plan, but VSP authorities fought to keep their plan under wraps.
At an April 2018 hearing, Judge Richard E. Moore ordered the VSP to provide a redacted copy of the plan within 30 days, but issued a stay on the order, as the state police appealed the decision to the Supreme Court of Virginia a few days prior to the order’s issuance.
Because the order was not final when the appeal was filed, the Supreme Court declined to hear the state’s case.
In May 2019, the case returned to Charlottesville Circuit Court and Moore removed his stay, ordering the VSP to again provide a redacted version of the plan. Against the petitioner’s wishes, Moore said that redaction via deletion of material believed by the VSP to be exempt could be done, rather than the more common black-out line redaction method.
Moore’s order was finalized on June 10, and a redacted copy of the state police’s operations plan was handed over to Jacobsen later that month.
However, in a July 2019 filing, Jacobsen’s counsel argued that the submitted plan violated FOIA guidelines and did not comply with Moore’s order.
Nearly eight months later, in March 2020, Moore ruled on the complainants’ motion, in part agreeing that the plan had been overly redacted.
In a ruling dated March 24, Moore details his review of the redacted VSP operation plan, breaking down his thoughts for each page of the plan.
“Upon review, there clearly are some portions, parts, items, or information redacted from the report that appear to the Court not to be tactical plans or that at least would not jeopardize the safety or security of law enforcement or the public, or that I cannot say for sure are such tactical plans that might endanger the safety of law enforcement or the public,” he wrote.
Moore clarified that his judgment also is influenced by the chance that an event similar to Unite the Right could occur again and the court being ill-equipped to make rulings on tactics in the absence of specific arguments.
“Racial and partisan awareness, tension, and even animosity has not disappeared from the Charlottesville-Albemarle area, and such are still in the news from time to time,” he wrote. “The possibility of some future rally, protest, or event still exists.”
If armed white supremacist groups were to return to the community, portions of the 2017 plan could be used again, Moore wrote, and the release of tactical information could prove dangerous.
Over the next four-and-a-half pages, Moore breaks down his thoughts on redactions from each page, generally disagreeing that redactions were related to tactics and other exceptions allowed under FOIA guidelines.
On several issues, however, Moore sides with the defendants, writing that the redactions were proper.
Though highly detailed, Moore’s breakdowns provide little insight to those not in possession of either version of the plan, which remains under seal.
Moore indicates in the ruling that either party may wish to appeal the ruling and that he is willing to impose a stay on his order, maintaining the status quo until the matter can be reviewed by the state Supreme Court.
It remains to be seen whether the state police will seek to appeal the ruling.