The General District Court scheduled the full hearing on our most recent FOIA request for 2:00 pm this afternoon (Wednesday). The county was represented this morning by Jack Roberts, the top lawyer in the county government. Mr. Roberts informed us, outside the court-room, that he still has the documents Donna Mateer gave to Scott York, saying that no one had come to pick them up yet pursuant to the appointment of Arlington Commonwealth’s Attorney Theo Stamos as the special prosecutor on the case.
After this morning’s preliminary hearing, Mr. Roberts met with us and said, “With my luck, the state police will come to pick them up before we come back at two o’clock.” We told him we hoped that wouldn’t happen. Our position is that this material is subject to the general duty of preservation attached to any material of potential evidentiary value in a legal proceeding, and, in particular, is subject to the specific duty of preservation imposed on the custodian of records sought under the Freedom of Information Act itself, by § 2.2-3704(A), which states, “The custodian of such records shall take all necessary precautions for their preservation and safekeeping.” The Act also states that a custodian is not relieved of their compliance obligations merely because it has transferred the records sought to another public entity ( § 2.2-3704(J)).
In an abundance of caution, we have sent this e-mail to Mr. Roberts’s office:
After the close of this morning’s hearing, you remarked on the possibility that the special prosecutor’s office might send someone to obtain the documents you are still holding and that are the subject of our pending FOIA request. Although I know you were speaking mostly in a humorous spirit, please keep in mind that § 2.2-3704(A) of the Freedom of Information Act imposes a duty of preservation and safekeeping on the custodian of records sought under the Act, and that § 2.2-3704(J) imposes a continuing duty of compliance on a custodian, even if that custodian transfers the records sought to another public entity.
In our view, if anyone should happen to come for the records before the hearing this afternoon, the Act obliges you to make and retain copies of those records so they will be available for production upon the court’s order, or in response to any other reason you might acquire.
Attorney for Petitioner Elizabeth Miller
The hearing is, of course, open to the public. Room 2F of the county courthouse, 2:00 pm today. We’ll report the outcome here, if you can’t make it.