ACLU of Virginia to Argue for Strict Interpretation of FOIA Exemptions

Affiliate: ACLU of Virginia
September 14, 2005 12:00 am

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RICHMOND, VA — The American Civil Liberties Union of Virginia will ask the state Supreme Court tomorrow to uphold a lower court decision allowing public access to informal ethical advice offered to judges by the Virginia Judicial Inquiry and Review Commission (JIRC).

“”Legislators made it clear when they passed the FOIA that it was intended to give the public broad access to government information and that exemptions to the law were to be narrowly construed,”” said ACLU of Virginia Executive Director Kent Willis.

The review commission, which investigates complaints filed against judges and offers informal advice on ethical matters, operates largely in secret. However, only “”a paper filed with or proceeding before”” the commission is exempt from the state’s Freedom of Information Act, which requires government bodies to make their records available to the public upon request. The ACLU maintains that informal ethical advisories for judges, which are delivered orally but summarized in writing, are not exempt from the FOIA.

The ACLU represents Norfolk lawyer Allan Zaleski, who was denied a copy of an informal ethics advisory issued by the review commission at the request of Norfolk Circuit Court Judge Charles D. Griffith, Jr. Griffith had been asked to recuse himself from presiding over a parole revocation case because he had earlier served as the prosecuting attorney in a case against the same defendant. Griffith refused to recuse himself and offered that the commission had advised him that he could continue to preside over the case. This led to Zaleski requesting a copy of the advisory opinion issued to Griffith.

In November 2004, a Richmond circuit court judge ruled that JIRC advisory opinions are not exempt from the FOIA and ordered it to release to Zaleski the advisory opinion issued to Griffith. The commission then asked the Virginia Supreme Court to take the case and reverse the lower court order.

During the 2005 General Assembly, legislators overwhelmingly supported a bill (SB 1157) exempting JIRC ethical opinions from the FOIA. Zaleski’s FOIA request is still valid, however, because it was made prior to the changes in the law.

“”For the FOIA in Virginia to remain viable and user-friendly, the Virginia Supreme Court merely needs to rule that the law is exactly what it says it is — and that when Zaleski made his request, the review commission’s ethical opinions were not exempt from the FOIA,”” said Willis.

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