FOIA Under Attack By the

Virginia Freedom of Advisory Council

Virginia is not heeding the call to deliver information in a way that creates;

• [1] transparency and;

• [2] demonstrates accountability.

The Unalienable Rights Foundation Office of Civil Rights Case Managers Kathleen McCarthy Forensic Evidence Management Team

Transparency creates a window into the world of government operations.

Accountability provides a measure of how government is performing.

Transparency and accountability providing citizens with a way to see plans for:

·      services and infrastructure;

·      spending;

·      the evolution of public policy;

All of which starts with providing access to information.

 When Virginia’s government holds itself accountable to the people of the Commonwealth, its citizens, our Government shows:

·      us how and why decisions are made;

·      offers measures of whether the public policy that touches and concerns the people of the Commonwealth are successful. 

An accountable and transparent government provides the “People” individuals and business, “Citizens All,” to get: 

[1] involved;

         [2] to help government reach what goals “We the People,”

the Citizens, have set for it.

This is best summarized in the adage, “Accountability builds confidence in government.”

 http://www.esri.com/library/brochures/pdfs/transparency-and-accountability.pdf

Guidance to meet this objective is found in the Code of Virginia:

§ 2.2-3700. B.  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…

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. ..  

When elected and appointed officials comply with the Freedom of Information Act:

·      it creates transparency that is free from “pretense and deceit,” which means that citizens will be able to "see through" the workings of its government;

·      to know exactly what goes on when public officials transact public business.

When Government is not transparent it is prone to corruption and undue influence because there is no public oversight of decision-making:

·      Virginia Freedom of Information Act [FOIA]

·      Virginia Public Records Act [PRA]

·      State and Local Government Conflict of Interest [COIA]

·      As found in:

o   Cartwright v. Commonwealth Transp. Comm’r, 270 Va. 58, 613 S.E.2d 449 (2005);

o   Fenter v. Norfolk Airport Authority, 274 Va. 524, 649 S.E.2d 704 (2007)

o   White Dog Publishing v. Culpeper Bd. Of Sup., 272 Va. 377, 634 S.E.2d 334 (2006).

These cases and the CODE all say that both elected and appointed officials in government are held accountable to the people by the laws of the Commonwealth [passed by the General Assembly and interpreted by the Courts] that regulate their and our actions.

The CODE and Constitutions [federal and state] limit the government’s use of power.  This protects the people from abuse. These laws [PRA / FOIA / COIA] require transparency and/or openness in government so that the people may readily have information necessary to evaluate the performance of their elected and appointed officials.

It was reported in The Virginia News Letter [Vol. 90 No. 2 January by Quentin Kid and Meyrem Baer] that a study conducted by the Center of Public Integrity, Global Integrity, and Public Radio International of all 50 states are on the risk of corruption.

In this study The Corruption Risk Report Card gave individual grades of F to the Old Dominion in several key areas one being public access to information, as well as legislative accountability among others.  http://www.coopercenter.org/sites/default/files/publications/Virginia%20News%20Letter%202014%20Vol.%2090%20No%201.pdf

On July 23, 2015, the Unalienable Rights Foundation (UARF) (Virginia State Corporation Commission ID No. 0632406-5 a Virginia citizen, a Virginia non-stock / not-for-profit corporation/organization and a news organization {see www.UARF.us}) whose [1] mailing address is P.O. Box 1224, Parksley, Virginia 23421-1224, [2] and office address is 306 Main Street, Newport News, Virginia 23601 is endeavoring to provide a valuable public service by independently analyzing and reviewing, without cost to the taxpayers, the operations and records of public entities/bodies (Virginia’s FOIA exists to provide a mechanism [Slip Op. II] for Virginia citizens to obtain an accounting from their public officials … McBurney v. Young, 569 U.S. ___ 1217 (2013) to ensure that the operations of government, such as The Freedom of Information Advisory Council [VFOIAC] and the Library of Virginia [LVA], Agencies [“Agency” means all boards, commissions, departments, divisions, institutions, authorities, or parts thereof, of the Commonwealth or its political subdivisions and includes the offices of constitutional officers Virginia Code§ 42.1-77] emailed a FOIA request to Ms. Maria J.K. Everett, Executive Director, Virginia Freedom of Information Advisory Council to examine all documents regarding:

·      Hampton Roads Transportation Accountability Commission [HRTAC]

·      Hampton Roads Transportation Planning Organization  [HRTPO]

·      Hampton Roads Planning District Commission [HRPDC]

All of which are alter egos of each other, as each of their responses to separate UARF FOIA requests to each agency indicates.

The responses to UARF FOIA requests from VFOIAC and LVA appear to UARF to confirm the Kid /Bayer findings in their report that touches and concerns corruption.  It appears to UAARF that the corruption has already set in, it is not merely a risk.

Ms. Everett response on July 29, 2015, to UARF’s FOIA Request dated July 22, 2015:

Please be advised that a search was conducted of all of our formal, published opinions, our electronic Correspondence directory, and all of our email dating back to 2010…  We also have paper copies of telephone calls and emails dating back to 2000; there are over 20,000 of these records.  We searched these paper phone and email records dating from July 1, 2014, through present date.  The only records in this office's possession that relate to your request are an email sent to Delegate Chris Jones offering FOIA training for HRTAC and a memorandum concerning the application of FOIA to Commissioners of Accounts that was shared with Senator Norment….the original emails will be forwarded to you.  We have chosen not to charge for the time involved in conducting these searches.

Please note that as mentioned, we have an additional 14 years' worth of paper telephone call and email records that are organized by month and year.  It took two of us approximately two hours to search one year's worth of these records (July 1, 2014, to present date, as described above).  We therefore estimate that it would take approximately 28 hours for us to search all of these records to try to find any that are responsive to your request.  At an administrative rate of $20/hour, the estimated cost for such a search would be $560 (we choose not to charge our rates as attorneys as searching these records is an administrative task). 

Unfortunately, while we appreciate your offer to search the records, because some of the records are confidential pursuant to subdivision 4 of § 30-179, we do have to perform this search ourselves.  Therefore, if you want us to search all of these records, please remit an advance deposit in the amount of $560, payable to the Treasurer of Virginia.  In the event that you do wish for us to search all of these records, please be advised that it is practically impossible to provide the requested records or determine whether they are available within the five working days required by FOIA because of the volume of records to be searched.  Therefore, we are invoking subsection B 4 of § 2.2-3704 to provide us with seven additional working days to respond to your request. However, please do not hesitate to contact us if you would like to work out some other arrangement.  

After receiving Ms. Everett’s response dated July 29, 2015, UARF sent Ms. Everett the following email dated August 12, 2015:

Again, I would like to thank you for responding so promptly to the July 22, 2015, FOIA and providing me with the two records below:

1.      An email sent to Delegate Chris Jones offering FOIA  training for HRTAC

2.      A memorandum concerning the application of FOIA to  Commissioners of Account that was shared with Senator Norment. 

Additionally, your email response dated July 29, 2015, indicated that you have an additional 14 years’ worth of paper telephone call and email records that are organized by month and year and that it would take an estimated 28 hours to search all of these records to try and find any that are responsive to my request at a cost of $560.00.

Please be advised that we do not expect you or your staff to search, review and/or inspect over 20,000 records.  At this time, I would like to narrow my request, which I believe would be less time-consuming and would substantially cut the costs associated with this request.  

Therefore, I herby request a digital inventory and/or index of the records that touch and concern HRTAC / HRTPO / HRPDC in Exhibit 1, 2, and 3, of the July 22, 2015, FOIA emailed to you on July 23, 2015.  

With an inventory / index, I will then be able to, with some specificity, limit the number of records requested and, at the same time, it will substantially decrease the number of hours of searching by you and your staff.   

Again, please provide me with an itemized schedule of any / all charges related to this request pursuant to §2.2-3704.F.

On August 14, 2015, Ms. Everett responded to UARF’s email dated August 12, 2015:

We do not have a digital inventory or index of records that touch and concern HRTAC / HRTPO / HRPDC (we have never created such a record).  Just so you know, we did search for all items responsive to your original request in our electronic files including email, website, published opinions, and our network folder, as detailed in our previous response.  The two records we sent were the only responsive items that we have.  We elected not to charge for the time involved in that search.  The only other records we have are paper records, as also described in our previous response, which you have indicated you do not wish for us to search.  If you have any questions or need additional information, please do not hesitate to call. 

Needless to say, I was completely astonished to learn that the FOIA Advisory Council was not following the FOIA laws § 2.2-3700 - § 2.2-3714 and/or the statutes as required under the Public Records Act § 42.1- § 42.1-92. 

Code Section § 42.1-76 The General Assembly intends by this chapter to establish a single body of law applicable to all public officers and employees on the subject of public records management and preservation and to ensure that the procedures used to manage and preserve public records will be uniform throughout the Commonwealth. This chapter may be cited as the Virginia Public Records Act.

§ 42.1-76.1. Any person elected, reelected, appointed, or reappointed to the governing body of any agency subject to this chapter shall (i) be furnished by the agency or public body's administrator or legal counsel with a copy of this chapter within two weeks following election, reelection, appointment, or reappointment and (ii) read and become familiar with the provisions of this chapter.

§ 42.1-92. B. By enacting this chapter, the General Assembly recognizes that an informed citizenry is indispensable to the proper functioning of a democratic society. In order to remain informed, citizens must know about the activities of their government and benefit from information developed at public expense….

UARF has a written statement that contradicts Ms. Everett’s email response to UARF’s FOIA requested dated July 22, 2015. 

This contradiction could have easily been resolved if Ms. Treadway, Librarian of Virginia [LV] had implemented, which is her mandate, the Public Records Act and enforced HRTAC / HRTPO / HRPDC to comply with the Code of Virginia § 42.1 - 42.1-92. 

If Ms. Treadway had exercised her discretion pursuant to § 42.1-90.1 [her good judgment], she could have conducted an audit of HRTAC / HRTPO / HRPDC to enforce these Statutes to demonstrate transparency and accountability in Virginia government. 

As it stands now, FOIA is nothing more than a mere gesture, words on a page in some book, because the Library of Virginia is not applying the provisions of the Public Records Act. § 42.1 - 42.1-92.

UARF does not know if Ms. Treadway, has contacted the agencies referenced above that have failed to obey the laws of Virginia because Ms. Treadway has failed to respond to the FOIA request emailed to her on July 22, 2015, and again on August 17, 2015.      

Therefore, UARF cannot determine whether Ms. Everett’s response to the July 22, 2015, FOIA request is a contradiction or a false uttering.

If it is a false uttering, the question arises whether it was a knowing and a willing uttering that would lead to holding the respondents to the penalties of Virginia Law that deals with false statements etc., including and not limited to:

·      CODE  § 18.2-462;

·      CODE  § 18.2-469;

·      CODE  § 18.2-471;

·      CODE  § 18.2-472;

Consequently, in an attempt to follow the Code of Virginia regarding the indexes and audits, UARF contacted Delegate William DeSteph and requested that he contact the Attorney General to determine if the FOIA Council and the Library of Virginia are subject to the FOIA Statutes and the Public Records Act. 

Delegate DeSteph, on UARF’s behalf, contacted the Attorney General, and on Thursday, August 20, 2015, at approximately 6:32 pm Delegate DeSteph confirmed that the FOIA Council and the Library of Virginia are both subject to the Public Records Act and the FOIA Statutes. 

A copy of Delegate DeSteph’s confirmation from the Attorney General was forwarded to Ms. Everett and Ms. Treadway.

Yet to date, UARF has not received a response to UARF’s FOIA request to Ms. Everett for an Index of records regarding HRTAC / HRTPO / HRPDC, as well as a request to Ms. Treadway that HRTAC/ HRTPO/ HRPDC comply with the Public Records Act including an official audit conducted by Ms. Treadway.

An indication to UARF that the Freedom of Information Advisory Council and the Library of Virginia lack independence. 

After reviewing the Commonwealth of Virginia’s website, it is quite clear that the Freedom of Information Advisory Council is part of the machinery of government.  FOIA is a branch of the Division of Legislative Services [DLS] and is designated as part of the services provided by DLS on the State’s Web Site that states that:          

The Division of Legislative Services [DLS] is the legislative branch agency created statutorily by the General Assembly to provide nonpartisan legal and general research services to members of the General Assembly and its standing committees in the House of Delegates and Senate of Virginia.

DLS’s Mission statement on the Commonwealth of Virginia’s Website states that:

The Division’s mission is to assist legislators in fulfilling their duties and obligations as members of the General Assembly.  This is accomplished by providing clear, concise, and objective information to all 140 members of the General Assembly.”

Accordingly, by law, VFOIA works in tandem with the members of the General assembly.  VFOIA’s priority, according to the DLS website, works in concert with the Legislators and, therefore, its loyalty is with the Legislators and not with the people of the Commonwealth.

Therein lies the problem. 

VFOIA lacks the autonomy or independence to objectively review, revise or delete any exemptions, which is the reason exemptions continue to pile up. 

The simple fact is that the FOIA council wears two hats that create unavoidable conflicts because of the many different interests and loyalties that exist at any given time within these competing roles.

As such, the FOIA council has a duty to more than one person, but cannot do justice to the actual or potentially adverse interest of both parties.  The people of Virginia’s interests are being overlooked.

Because the FOIA Council is staffed by the Division of Legislative Service [DLS], it is a branch of the DLS. Based on its own Mission Statement, FOIA is required to serve the legislature and not “We the People.” 

This premise creates a conflict of interest when it attempts to balance the dual role of being an arm or branch of DLS vs. the people’s right to know the inner workings of its government. 

Public servants have a fiduciary responsibility to the people of Virginia.  This fiduciary relationship is based on the utmost trust, confidence, and the integrity of objective decision-making.  Conflicts of interest are a cancer that eats away at these principles. These inherent conflicts could provide an incentive for improper acts in some circumstances.

A conflict of interest can exist even if there are no improper acts as a result of it.  A person with two roles may experience situations where those two roles conflict. Having two roles is not illegal, but the differing roles will certainly provide a conflict that could impair an individual’s ability to perform his or her duties and responsibilities objectively.

Impropriety occurs when an elected or appointed official is faced with a conflict of interest.  Because FOIA is part of the DLS, can the people of the Commonwealth honestly believe that they are not being unduly influenced by the mutual reliance and interaction with the General Assembly? 

Two hats cannot fit on one head at the same time.  What assurances do the Citizens of the Commonwealth have that VFOIAC will not be influenced by a member of the General Assembly to create an exemption that conceals unfavorable legislation that protects the Delegate, Senator, or bad acts of Government instead of the People of Virginia?

Transparency is a commitment to openness and by exposing conflicts of interest corruption that is hidden can easily be detected.

COIA is also aimed at perceptions, as well as the realities. It exists even if no unethical or improper acts occur.   A conflict of interest can create an appearance of impropriety that can undermine confidence in the government.

Even the appearance of impropriety undermines the public’s faith that the process is fair.

VFOIA’s lack of independence presents a dilemma for FOIA because its guiding principle is openness § 2.2-3700.B. and yet the very tenets of FOIA are blurred by the nature of these dual roles.  As a result, the public will continue to lose faith in the integrity of the government’s decision-making process instead of promoting and fostering transparency and accountability.

The dog had nothing to say !!

HCN Serves the Virginia Beach Fire Department

With a Freedom of Information Act 

Request for Documents [public records].

The request was denied. The department refused to follow the FOIA law requirement for the denial;
The department failed to meet the following requirements for denial  stated in Code § 2.2-3704.B.1.;

• Such response shall identify with reasonable particularity

• the volume and

• subject matter

• of withheld records, and

• cite,

• as to each category of withheld records,

the specific Code section that authorizes the withholding of the records.

What was asked for:

Any and all policies and procedures for granting interviews by whatever name they may be called, designated, referenced and/or described and in whatever form they may exist.

For the following personnel / entities associated with the Virginia Beach Fire  Department:

 
Michael Barakey

Office of District Chief of Administration

James M Ramsey

Office of District Chief of Personnel and Development

Susan Salafranca

Office of Workforce Planning and Development

FOIA Course Materials 

FOIA Request Long Form 

Petition For Injunction Or Mandamus Freedom Of Information Act And Affidavit For Good Cause Or Protection Of Social Security Numbers Act

Use and Enforcement of Records Demands Under the Virginia Freedom of Information Act

FOIA  COIA  PRA  MANUAL

Service Other Than by Virginia Sheriff

Certificate of Mailing Posted Service

Subpoena Duces Tecum

Request for Witness Subpoena

General District Courts Informational Pamphlet

General District Court Civil Filing Fee Calculation

Virginia's Unalienable Rights Foundation asks Will Sessoms, Virginia Beach's Mayor if he wants UARF to sue the city every time they violate the Freedom of Information Law or would he prefer to work out the problem.

UARF's Civil Rights Case Manager, Josh Thompson , sent the following letter to Mr. Sessoms after the Beach's city Rod Ingram wrote Ingram made unreasonable demands on both Thompson and UARF.

Mr. Sessoms,

Mr. Ingram told me in his letter that our Freedom of Information Act [VFOIA and/or FOIA] requests appear to be redundant to City Officials.

While our Freedom of Information Act [VFOIA and/or FOIA] requests may appear to be redundant to your lawyer they are actually a straddled effort to obtain the information requested in the initial FOIA requests.

We have had to do this as when we appear in person in your office as you are the public record custodian’s office as set out in Virginia code Sec. 2.2-3704.A. [along with Code Section 42.1-77, 42.1-86 and 42.1-87] and ask to examine the public records UARF’s officials have been turned away and not allowed to examine the records nor at that time are we provided with a response that is in accordance with Virginia Code Section 2.2-3704.B..

And when we are provided with a written reply to the FOIA the reply we have received to the FOIA from Rod Ingram and your office is lacking by the failure of the responders to comply Virginia Code Section 2.2-3704.B..

To make sure that there is a clear understanding of what the Code requires of you and the city in your responses to a UARF’s FOIAs we include in our FOIAs the required responses that the Code sets out along with court decisions that address a responders obligations in making a response to a FOIA request.

You and every city official we have sent a FOIA request to have been provided with a copy of Virginia’s [1] FOIA law, [2] the Virginia Public Records Act (PRA), [3] Virginia Attorney General Opinion 12-052/Bundick, and the case law set out in White Dog Publishing v. Culpeper Bd. of Sup., 272 Va. 377, 634 S.E.2d 334 (2006), all of which you and city officials continuously ignore.

You told Thompson if, what you seem to be calling, replications of FOIA are coming about because the people at UARF are not in communications with each other. City officials are getting what you are calling redundant FOIAs because we are in communications with each other.

We have communicated with each other that UARF officials are being turned away when they ask for a record as set out in Code Section 2.2-3704A. without the City's Officials complying with Code section 2.2-3704.B.

And any after-the-fact response city officials make is still not in compliance with the aforesaid code sections.

We had/have a choice, we can file suit at the city official’s first denial of rights given to UARF’s officials by law or go back and ask the city official again for the public records.

There is another element that would sound senseless to a rational person, and that is, perhaps there is a personality conflict between the official responding to the FOIA and the presenter. I can not say if that is the case, only the responder can and I feel rather than ask that question of the responder it is perhaps better to have another person ask for the records.

That is what has been done, we have now asked you for the same information that Mr. Ingram was asker for and was not given [and/or found the records to be culled by city officials without the official following the law/authority to cull records as set out in Code Sec. 2.2-3704.B.] and hopefully the response from city officials will to be to comply with the PRA and FOIA laws.

You have first hand experience with this. When we asked you for the Library of Virginia [LVA] form RM 25 your office was/is required to file your first response was to send UARF a letter saying you may have the document. That is not a proper response, either you do or you don't and you must say that either you do or you don't.

When your inappropriate reply to the UARF FOIA was received we again sent you a request for the same information and included in that follow up request a cite to the code section requiring you file the form and the Bundick AGO that details the requirement of your office having a records officer.

Your response seems to say you as the Mayor and in charge of the Mayor's office have no dea what you have done and are doing.  How long have you been Mayor and how long have you not done your job? You were to  have filed the RM 25 with the LVA.  You should have provided us with a copy of that RM 25 in response to the FOIA for it. Itg appears to UARF that you and your legal team are  unaware of the requirement since  you have served your city as it Mayor.  The woman you badmouthed as incompetent that served as Mayor prior to your being elected to Mayor filed one, why have you done so? 

This being said, we, in the alternative, could have filed suit upon your inappropriate response. Instead we wrote again and request the same information and provide a few documents with the request and you took the steps to fix a problem. That is as it should be.

We currently have asked the city public record's officer for documents and access to documents and the response was not in conformity with FOIA as cited herein. We have again asked for the documents rather than file a suit. In addition since the records officer appears to us to be unwilling to follow the law in responding to our FOIA requests, we have directed that request to other city officials in hope they will provide that information.

Mr. Sessoms, tell UARF what you want it to do, [1] sue the city and your office when you fail at the start to comply with the requirements of FOIA or [2] have UARF address the issues again in an effort to resolve the difficulty and avert a lawsuit and cost to the city?

Virginia's Unalienable Rights Foundation asks Northampton County Attorney if he wants UARF to sue the county every time they violate the Freedom of Information Law or would he prefer to work out the problem.

UARF's president, David Lindsey, sent the following letter to Mr. Jones after Mr. Jones called UARF's Civil Rights case manager complaining about follow up FOIA requests.

Mr. Jones,

Mr. Meyers told me about your call to him in the A.M. on June 10^th, 2014. You told Meyers our Freedom of Information Act [VFOIA and/or FOIA] requests appear to be redundant to Northampton County Officials.

While our Freedom of Information Act [VFOIA and/or FOIA] requests may appear to be redundant to Northampton County Officials they are actually a straddled effort to obtain the information requested in the initial FOIA requests.

We have had to do this as when we appear in person in the public record custodian’s office as set out in Virginia code Sec. 2.2-3704.A. and ask to examine the public records UARF’s officials have been turned away and not allowed to examine the records nor at that time are we provided with a response that is in accordance with Virginia Code Section 2.2-3704.B..

And when we are provided with a written reply to the FOIA the reply we have received to the FOIA from Northampton County Officials and your office is lacking by the failure of the responders to comply Virginia Code Section 2.2-3704.B..

To make sure that there is a clear understanding of what the Code requires of Northampton’s officials in their response to a UARF’s FOIAs we include in our FOIAs the required responses that the Code sets out along with court decisions that address a responders obligations in making a response to a FOIA request.

You and every County official we have sent a FOIA request to have been provided with a copy of Virginia’s [1] FOIA law, [2] the Virginia Public Records Act (PRA), [3] Virginia Attorney General Opinion 12-052/Bundick, and the case law set out in White Dog Publishing v. Culpeper Bd. of Sup., 272 Va. 377, 634 S.E.2d 334 (2006), all of which you and Northampton County officials continuously ignore.

You asked Meyers if, what you seem to be calling, replications of FOIA are coming about because Robert Meyers, Kenneth Dufty and myself are not in communications with each other. Northampton officials are getting what you are calling redundant FOIAs because we are in communications with each other.

We have communicated with each other that UARF officials are being turned away when they ask for a record as set out in Code Section 2.2-3704A. without the County’s Officials complying with Code section 2.2-3704.B.

And any after-the-fact response county officials make is still not in compliance with the aforesaid code sections.

We had/have a choice, we can file suit at the county official’s first denial of rights given to UARF’s officials by law or go back and ask the county official again for the public records.

There is another element that would sound senseless to a rational person, and that is, perhaps there is a personality conflict between the official responding to the FOIA and the presenter. I can not say if that is the case, only the responder can and I feel rather than ask that question of the responder it is perhaps better to have another person ask for the records.

That is what has been done, we have now asked Mr. Myers to ask for the same information that Mr. Dufty asked for and was not given [and/or found the records to be culled by county officials without the official following the law/authority to cull records as set out in Code Sec. 2.2-3704.B.] and hopefully the response from county officials will to be to comply with the PRA and FOIA laws.

You have first hand experience with this. When we asked you for the Library of Virginia form RM 25 your office was/is required to file your first response was to send UARF a copy of the form Ms. Nunez filled out for the county.

When your inappropriate reply to the UARF FOIA was received we again sent you a request for the same information and included in that follow up request a cite to the code section requiring you file the form and the Bundick AGO that details the requirement of your office having a records officer.

Your response was to file the RM 25 with the LVA and send us a copy and say that you were unaware of the requirement for the past 22 years you have served your county as it Commonwealth Attorney, etc..

This being said, we, in the alternative, could have filed suit upon your inappropriate response. Instead we wrote again and request the same information and provide a few documents with the request and you took the steps to fix a problem. That is as it should be.

We currently have asked the county clerk for documents and access to documents and the response was not in conformity with FOIA as cited herein. We have again asked for the documents rather than file a suit. In addition since the clerk appears to us to be unwilling to follow the law in responding to our FOIA requests, we have directed that request to other county officials in hope they will provide that information.

Mr. Jones, tell UARF what you want it to do, [1] sue the county and your office when you fail at the start to comply with the requirements of FOIA or [2] have UARF address the issues again in an effort to resolve the difficulty and avert a lawsuit and cost to the county?

Hollywood couldn’t come up with a better script than this. A gang member was convicted in 1986 of double murder by two prosecutors who are now accused of coercing witnesses into giving false testimony against him; and he was sentenced to death by a judge who had taken a bribe from his co-defendant.

One of those two prosecutors will have to answer for his alleged actions after the Chicago-based 7th U.S. Circuit Court of Appeals ruled last week that he did not have immunity.

According to a Monday article at Courthouse News, a divided three-judge panel ruled that former Illinois assistant state attorney Lawrence Wharrie could be sued civilly by Nathson Fields, the man who was convicted in 1986 for the murders. Prosecutors generally have absolute immunity from civil suits for their actions during the course of a criminal prosecution, and the panel held that Wharrie’s co-counsel, former assistant state attorney David Kelley, was immune. Fields had spent 17 years in prison before he was acquitted during a retrial in 2009. (Thomas Maloney, the judge who presided over Fields' first trial, was convicted of taking bribes and sentenced to more than 15 years in prison, according to the Chicago Tribune. He died in 2008.)

"Wharrie is asking us to bless a breathtaking injustice," 7th Circuit Judge Richard Posner wrote for the majority (PDF) . According to Posner, Wharrie could be sued because he was accused of acting outside of the boundaries of his job by performing an investigative role prior to the start of the prosecution against Fields. Kelley, on the other hand, was protected because his alleged actions took place while preparing for trial—when a prosecutor unquestionably has immunity.

Circuit Court Judge Diane Sykes dissented, arguing that the case law in the 7th Circuit was unclear as to the scope of prosecutorial immunity. Sykes pointed out that a recent 7th Circuit decision held that prosecutors might have qualified immunity even when coercing testimony. She argued that the law needed to be clarified.