Bradford motion: July 27, 2011

VIRGINIA:

IN THE GENERAL DISTRICT COURT OF LOUDOUN COUNTY

BEVERLY FRANCES BRADFORD

Plaintiff

v.                                                                                Case No. GV11005508-00

LOUDOUN BOARD OF EQUALIZATION

J. Scott Littner, Chairman

Defendant

MOTION TO ENJOIN LOUDOUN BOARD OF EQUALIZATION FROM NONCOMPLIANCE WITH THE VIRGINIA FREEDOM OF INFORMATION ACT.

INTRODUCTION

This case comes before the court for hearing to consider Plaintiff’s Motion to Enjoin the Loudoun Board of Equalization from noncompliance with § 2.2-3700 (B), and certain other provisions of the Virginia Freedom of Information Act:

By enacting this chapter, the General Assembly ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked.

The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law.

The issue in this case is whether the Court shall compel the Board of Equalization to adopt procedures that do not deter or prevent any person from attending, recording, and/or photographing meetings required to be open; that make available one public copy of each meeting agenda packet without a belabored and obfuscatory process, and that provide timely meeting minutes which capture board population/absence, determination, and division for every board vote.

BACKGROUND and AFFIDAVIT

On June 28, 2011, defendant J. Scott Littner, chairman of the Loudoun Board of Equalization, denied Plaintiff’s attendance at a public meeting required to be open wherein the board considered, determined, and voted on an appeal of the Loudoun County Tax Assessor’s 2011 property tax assessment for the National Conference Center, 18870 Upper Belmont Place, Lansdowne VA, 20176, PIN 081369067.

At 11:10 am on June 28 Plaintiff verbally notified Sheryl Triplett, clerk of the Board of Equalization, in the presence of Mr. Littner and other board members, that Plaintiff is a contributor to a digital news outlet, Leesburg AOL Patch, and would attend a 1 p.m. Board of Equalization public meeting to provide news coverage.

During the hearing, Plaintiff operated handheld digital equipment including a Nikon digital camera and an Olympus digital audio recorder. (See Exhibit A). After Plaintiff made one digital photograph from her seated position in the BOE’s meeting room, Board of Equalization Chairman Scott Littner verbally challenged Plaintiff’s use of handheld digital equipment to photograph a public meeting. Plaintiff stated, “It’s a public meeting” but immediately responded, complied fully with Mr. Littner’s objection, and refrained from any further use of digital photography equipment. Mr. Littner continued the public meeting for about five minutes.

Then, without suspending the public meeting, Mr. Littner again challenged Plaintiff verbally, rising from the chairman’s table and crossing diagonally through the center of the meeting room to physically confront, threaten, harass, and intimidate Plaintiff and demanding to know the content of the photograph she had taken. Upon his notice of a handheld digital audio recorder in the open palm of Plaintiff’s hand, Mr. Littner further demanded to know what Plaintiff had recorded. Plaintiff voluntarily refrained from further use of the digital audio equipment and Mr. Littner continued the public meeting.

After Mr. Littner adjourned the public meeting, three appellants and three members of the tax assessor’s staff filed out of the meeting room. Plaintiff remained seated in one of the two chairs available for public use. At that time, uniformed Loudoun Deputy Sheriff Dale Gardner approached Plaintiff and asked her to step outside the meeting room with him. Deputy Sheriff Gardner declined Plaintiff’s requests that he accept possession of her digital camera and recording equipment and allow her to remain in the meeting room to provide news coverage of the conclusion of the public meeting. Instead, Deputy Sheriff Gardner detained Plaintiff in a hallway outside the closed door of the Board of Equalization meeting room.

Mr. Littner then reconvened the meeting of the Board of Equalization, with Vice Chairman Michele Ferreira, Secretary Edward Maurer, and member Peter Kehoe in attendance. The board met and voted in private session as Plaintiff was detained in the hall outside the meeting room. Plaintiff stipulated to Deputy Sheriff Gardner that the BOE was meeting and voting in violation of Virginia Statute § 2.2-3707 (A). Plaintiff was wrongfully detained in the hall outside the closed door of the meeting room against her expressed wish and strong desire to provide news coverage of the public meeting ongoing within.

DISCUSSION

  1. Virginia § 2.2-3707 (A) requires that

All meetings of public bodies shall be open.

A June 28 meeting of the Loudoun Board of Equalization required to be open was closed to Plaintiff, who was detained by a sheriff’s deputy as the BOE met and voted behind the closed door of the public room marked by a “public meeting” sign. (See Exhibit E). A deputy sheriff was summoned by Mr. Littner to detain Plaintiff outside the public meeting room as four members of the Board of Equalization, a quorum, conducted public business, including voting, in an atmosphere of secrecy.

2. § 2.2-3711 (B) requires that

No resolution, ordinance, rule, contract, regulation or motion adopted, passed or agreed to in a closed meeting shall become effective unless the public body, following the meeting, reconvenes in open meeting and takes a vote of the membership on such resolution, ordinance, rule, contract, regulation, or motion that shall have its substance reasonably identified in the open meeting.

Even if it had properly convened, upon conclusion of the closed meeting on June 28 held subsequent to the assessment appeal by the National Conference Center, the BOE did not reconvene in open session.

3. Virginia § 2.2-3707 (F) requires that:

At least one copy of all agenda packets and, unless exempt, all materials furnished to members of a public body for a meeting shall be made available for public inspection at the same time such documents are furnished to the members of the public body.

Despite multiple requests by Plaintiff, BOE administrative staff did not make available agendas or agenda packets prior to and during Board of Equalization meetings on June 28, 2011, and July 8, 2011.

4. Plaintiff’s removal was pretextual.

Section 4.9 (See Exhibit B) of BOE “administrative procedures” states:

The BOE must be notified prior to commencement of photographing, filming, recording or other reproduction of any portion of a meeting.

This arbitrary BOE policy exceeds the scope of  § 2.2-3707 (H), VFOIA and becomes woefully anachronistic when applied to contemporary newsgathering practices. Handheld digital recording and camera equipment requires no determination of “placement and use” because its diminutive size does not “interfere with the proceedings” and its high quality permits intermittent use with no need to consider the “placement and use” of bulky tripods, film and video cameras, electric-powered recorders, and noisy electric motors that met news industry standards when this policy was written.

In the present application by the BOE, such policy imposes an artificial process that renders public’s use of handheld digital equipment at BOE public meetings unnecessarily burdensome and causes the certain effect of deterring and preventing digital audio and video recordings and photographs at public meetings of the BOE.

Additionally BOE policy 4.9 fails to recognize and accommodate the technical dimensions of digital news coverage that relies upon immediate uploads of photos and stories to provide real-time news coverage.  For example, in order to obtain even a cursory account of the BOE’s determination and vote on the NCC matter for Leesburg AOL Patch, Plaintiff was required to file a formal FOIA request with the BOE on June 29 which was only partially fulfilled on July 8, delaying a news account of the June 28 hearing by 13 days and severely restricting its factual content. (See Exhibit C). By contrast, Leesburg and Ashburn Patch editors customarily attend meetings to write and upload news stories and photos from laptop computers and cameras in real time.  As a corporate citizen of Loudoun County that pays almost $1.5 million in property taxes, AOL correctly presumes that its employees, contractors, and contributors will receive standard protections and consideration under Virginia’s Freedom of Information Act.

BOE policies fail to grasp and apply even the most rudimentary 21st Century technological means to provide “ready access to public records” such as meeting agendas, minutes, and other public documents.

5. Virginia Statue § 2.2-3707 (I) requires public boards to record minutes at all open meetings to include:

(i) the date, time, and location of the meeting; (ii) the members of the public body recorded as present and absent; and (iii) a summary of the discussion on matters proposed, deliberated or decided, and a record of any votes taken.

No such record of the June 28, 2011, public meeting was provided in the BOE’s July 8 response to Plaintiff’s Freedom of Information Act request, tendered June 29, 2011. No definitive recording or objective record exists from the BOE discussion of the National Conference Center’s assessment appeal, and of the BOE vote(s) that occurred while Plaintiff was detained in the hallway on June 28, 2011.

Additionally, certain documents pertaining to the BOE’s determination of the National Conference Center’s June 28 appeal were inappropriately postdated July 5, 2011, under the signature of Board secretary Edward Maurer. (See Exhibit D)

CONCLUSION

 § 2.2-3713 (D). A single instance of denial of the rights and privileges conferred by this chapter shall be sufficient to invoke the remedies granted herein.

DEFENDANT denied the rights and privileges of Plaintiff on June 28, 2011 by:

FAILING to maintain an open meeting of the BOE at the Loudoun County Government Building, 1 Harrison St. SE, Fourth Floor, Leesburg Virginia, in violation of § 2.2-3707 (A), and by

REFUSING to provide agenda packets for public meetings of the BOE on June 28, 2011, and July 8, 2011 in violation of § 2.2-3707 (F), and by

REFUSING to allow Plaintiff’s use of a digital audio recorder 3 7/8” x 1 3/8” x ½” in size in violation of § 2.2-3707 (H), and by

FRAUDULENTLY detaining Plaintiff in a hallway outside a public meeting place while the BOE conducted public business in violation of § 2.2-3707 (A), and by

FAILING to record minutes at an open meeting that:

include (i) the date, time, and location of the meeting; (ii) the members of the public body recorded as present and absent; and (iii) a summary of the discussion on matters proposed, deliberated or decided, and a record of any votes taken.

in violation of § 2.2-3707 (I).

The Loudoun Board of Equalization routinely inhibits and/or prohibits ready access to public records and free entry to public meetings wherein the business of the people is being conducted, instead conducting its affairs in an atmosphere of secrecy that utterly defeats good faith efforts by Plaintiff and other Loudoun County citizens to “witness the operations of government.”

 PLAINTIFF THEREFORE PRAYS THAT THE GENERAL DISTRICT COURT OF LOUDOUN COUNTY:

GRANT this Motion to Enjoin the Board of Equalization from noncompliance with § 2.2-3700 (B); § 2.2-3707 (A), (F), (H) and (I); § 2.2-3711 (B) and § 2.2-3712 (D) of the Virginia Freedom of Information Act and

ORDER that

1. The Loudoun Board of Equalization, J. Scott Littner, Chairman, consult and confer with Virginia Freedom of Information Advisory Council staff attorney Alan Gernhardt and Loudoun County Tax Assessor Todd Kaufman to establish procedures and with Loudoun County news media outlets including Leesburg and Ashburn AOL Patch, Leesburg and Ashburn Today, Loudoun Times Mirror, and Purcellville Gazette, to incorporate their technological capabilities into updating and rewriting BOE policies so as to cure the BOE’s ongoing institutional noncompliance with § 2.2-3700 (B); § 2.2-3707 (A), (F), (H) and (I);  § 2.2-3711 (B), and § 2.2-3712 (D).

2. The BOE submit to the Court a draft plan for Virginia FOIA compliance acceptable to the Tax Assessor and affected news media outlets by the 31st day of August, 2011.

3. In the interim, the BOE shall provide one public copy of every board meeting packet prepared for BOE assessment appeals hearings on and subsequent to June 28, 2011, to be made available forthwith without further burdening the public with any requirement to file a formal Freedom of Information Act request to access and review meeting agendas, minutes, public documents, recordings, and other public records of assessment appeals.

4. That all Board of Equalization members and support staff attend the Virginia FOIA Advisory Council’s “Road Show” in Sterling on Friday, Sept. 9, 2011 (See Exhibit F).

5. That the Board of Equalization contribute $2,000 to the Virginia Literary Fund.

6. Plaintiff shall be entitled to recover reasonable costs, including court costs and reasonable fees for expert witnesses and attorney fees from the BOE.

Respectfully submitted,

/s/

Beverly Frances Bradford

Plaintiff

[Address redacted]

Leesburg VA 20176

Dated: July 27, 2011

CERTIFICATE of SERVICE

I hereby certify that the foregoing Motion was filed by hand with the Loudoun General District Court Clerk on this 27th Day of July 2011, with copies served by hand to:

J. Scott Littner, Chairman

Loudoun Board of Equalization

1 Harrison Street SE

Fourth Floor

Leesburg VA 20177

John P. Flannery, II

19 East Market St.

Leesburg VA 20177

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