Judge says Chesterfield's policy to withhold public information 'clashes' with government transparency law

CHESTERFIELD COUNTY, Va. — A judge said that Chesterfield County's practice of routinely withholding certain information from the public appears to clash with the policy of the state's government transparency law, which promotes openness.

Retired Judge William Shaw issued his opinion of the policy in an order in an ongoing lawsuit against the Chesterfield County government, alleging violations of Virginia's open records law, the Freedom of Information Act (FOIA).

The petition was brought forward by Chesterfield County resident Charlotte Carter, who is challenging Chesterfield County, Chesterfield Police, and Chesterfield Police Chief Jeffrey Katz in an effort to get information about police incidents that happened at her home, involving her and her family.

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According to Carter's complaint, in 2022, she asked the police department for body camera footage, 911 calls, and police reports.

She said her requests were first denied, and then she was told she'd have to pay $24,000 for the department to produce the materials.

County attorneys said the fee reflected the volume of her request and time it would take to fulfill it.

“It's been almost a year and a half now that I've been fighting this and trying to get these documents. I don't feel 24k is a reasonable assessment," Carter told CBS 6. “I can see where people can be easily dissuaded from accessing public records when this is what you have to go through to get them.”

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A central point of her lawsuit claims that Chesterfield's countywide policy to always withhold information that it has discretion to release goes against the spirit of FOIA.

Chesterfield's website says, "[I]t is the county's practice to invoke all exemptions that are applicable to any request for records," citing a desire to "protect some compelling public interest such as privacy of individuals, criminal investigations, or the county’s bargaining position in an on-going negotiation or discussion."

“I think it's just a way to block the public from accessing records that we have a right to," Carter said.

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Carter's attorney Joy Ramsingh said FOIA is a law that presumes all records are open to the public, not the other way around.

“Anytime they have the discretion to deny, they're always going to say 'no.' That's not really using your discretion if you're already setting out your purpose is that you're going to say 'no,' no matter what," Ramsingh said.

But Chesterfield filed objections to all of Carter's claims.

According to court transcripts, county attorneys argued that the county's policy simply lets people know that "these are the records we routinely withhold from production when requested."

County attorneys also told the judge that the policy, which is listed as a "policy" on the government website, may not actually be a policy but rather a "document."

County attorneys said staff review every single record that is requested "to determine whether an exemption applies" which they said is "inherently discretion."

However, Judge Shaw appeared to disagree.

"On its face the county's policy clashes with the policy of openness under [FOIA]," Judge Shaw wrote.

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Shaw threw out all of the county's objections to Carter's lawsuit and said Carter's claims "have legal validity."

While the judge's order permits the lawsuit to move forward, it does not yet make a final ruling on the lawfulness of the county's policy.

However, Ramsingh and transparency advocate Megan Rhyne said a favorable ruling could have wide-reaching impacts.

“I think that there may be other policies across the state that are going to be affected by this," Ramsingh said.

“I’ve heard of this all over the state. It's usually law enforcement. Sometimes school districts will do it too," said Rhyne, director of the Virginia Coalition for Open Government. “What I don't like to see is an assumption that, ‘Oh, well because it is this type of record then it automatically is going to fall under our policy.”

Rhyne added, "A policy exists to protect a certain interest. So if that interest isn't jeopardized by the request, you don't need to use the policy, you don't need to withhold a record."

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Chesterfield County also attempted to have Chesterfield Police and Police Chief Jeffrey Katz removed as named parties in the lawsuit. Judge Shaw overruled the county's motion, saying they both are custodians of records sought by Carter and meet the criteria of a public body and public official.

Additionally, Carter argued that Chesterfield County refused to provide certain information because of an "ongoing criminal investigation." However, Carter alleged the criminal matters, which involved her, have been resolved. The judge said her claim of an "arbitrary denial, if true, states a valid cause of action."

The judge said he had no reason to believe Carter made her claims in bad faith.

“I think every citizen should take part in accountability with our government and accessing public records. Our tax money is going towards funding them. We should know what is going on within the departments," Carter told CBS 6.

CBS 6 asked Chesterfield County and the Board of Supervisors about the FOIA policy, when it was adopted, and their reaction to the judge's opinion.

The county attorney said they would not comment since litigation is pending.

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