Judge Rules Against Transparency

A Loudoun County General District Court judge today denied Real Advocate’s request that the county government be ordered to produce the papers Eugene Delgaudio’s staff aide delivered to chairman Scott York, several months ago. Real Advocate has filed its request for a review at the Circuit Court, where we hope the next judge will put transparency ahead of non-disclosure. The date for the Circuit Court hearing should be set sometime next week.

County Attorney Jack Roberts admitted in court that the county had failed to meet its obligation under the Freedom of Information Act to produce the documents by November 2, 2012. However, the county argued, and the judge accepted, that the documents are presently part of a criminal investigation and that, even though the investigation began after the November 2′nd deadline, the exception to FOIA demands allowed for criminal investigative files could be applied to deny our request for a court order of disclosure.

Mr. Roberts stated that he had asked Commonwealth’s Attorney Theo Stamos, who is the special prosecutor appointed on November 8′th to oversee the criminal investigation, what her preferences were regarding disclosure. He said she had asked that the documents not be disclosed. We believe that’s an understandable reaction from a prosecutor in general, but it is important to know that Mr. Roberts also stated that the documents are still in his possession. Ms. Stamos still hasn’t seen them, so any preference she expressed regarding disclosure is not based on what the documents would reveal. Rather, her opposition to disclosure can only be on the general principle that the less she reveals, the better for her investigation. We felt that wasn’t good policy in this case, since the documents reportedly originated in the office of the person under investigation. While it makes some sense to withhold evidence from a person under investigation while that investigation is taking place, that’s much harder to understand when the person under investigation already knows what the documents contain. Although we made that point in court, the judge ruled against disclosure, stating that protecting the investigation was still a legitimate reason, even when asserted after the deadline for delivery had been missed, not to disclose documents demanded under FOIA.

Real Advocate understands that legitimate issues of effectiveness and competing policies sometimes call for the exception asserted by the county today. But we also note that the statute does not mandate that criminal investigative files be withheld; instead, it expressly grants the document custodian the power to disclose those documents “in his discretion.” However, Ms. Stamos hasn’t even seen the documents (three weeks after being appointed to investigate them!), so we feel her application of discretion is unduly conservative and, frankly, insufficiently informed. Moreover, while we also understand that a judge might want to err on the side of granting a prosecutor’s wishes, we also feel that the public may be able to assist in the investigation, noting in particular Scott York’s remarks at his recent town hall meeting, that it was only after multiple reviews of those documents that he finally recognized something of importance. We believe that the public, if given a chance to make its own review, might just as readily make similar discoveries of value to the overall goal of finding the facts. So, while we respect the judge’s ruling and understand his reasoning, we nonetheless feel that transparency is more important to the public good, given the specifics of this case, than more secrecy. Indeed, the only real disappointment that we feel at today’s ruling, given the revelation that the documents are not yet even in the hands of the special prosecutor or her investigators, is that, once again, it is an investigation that the county has used to keep the citizens in the dark.

We have filed our appeal. We will continue to fight for full disclosure and transparency. We will hold our elected officials to account for what they do while they’re in office.

No matter how long it takes, nor how hard they fight us, we will never give up.

(Leesburg Today has an article on today’s proceedings.)

Posted in FOIA Action
2 comments on “Judge Rules Against Transparency
  1. Kelli says:

    Just wondering if the aide provided ALL the docs to Washington Post for the article? Who else in a media or public format did she provide ALL docs to. But caution says that ED Attorney may cry interference if docs are released. Did anyone FOIA ED for the docs? Just as a matter of principal since he has done nothing wrong.

  2. Kelli, you raise a good question with regard to the idea that “all” the documents should be released, when the very thing that we don’t know is whether the set of documents that York eventually passed on to the CA is an exact match to what the WaPo reporter saw. It doesn’t look as if anyone who has the ability to do so has any intention of simply releasing them. The investigations (the CA’s and ours) will take their course, which I’m sure makes Delgaudio and his attorney very uncomfortable indeed.

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