Code states that lawsuits brought under FOIA must be “received” by the respondent, not “served.”
By Adele Uphaus
MANAGING EDITOR AND CORRESPONDENT
Lawyers for the Spotsylvania School Board successfully argued in General District Court this week that a petition brought by a citizen alleging violation of Virginia’s Freedom of Information Act should be dismissed because it was “improperly served.”
However, Virginia Code does not require that FOIA lawsuits be “served,” only that they must be “received” by the party against whom the petition is brought.
“That language is intentional,” said Megan Rhyne, associate director of the Virginia Coalition for Open Government, in an email to the Advance.
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In a series of posts made to X this morning, Rhyne elaborated, “The [Supreme Court of Virginia] has repeatedly—again, for years—pointed out that FOIA is different when it comes to the usual procedure, and that’s because it’s a law that specifically envisions enforcement by (non-attorney) citizens. Requiring official service of process contradicts that.”
Theodore Marcus, a Spotsylvania citizen and former swim coach at Riverbend High School, filed the petition last week, asking the court to compel the school division, School Board, and individual members Lisa Phelps and April Gillespie to release records responsive to multiple requests he made over the past year.
In a hearing on Tuesday morning, General District Court judge Jane Reynolds agreed with attorneys from McGuire Woods, representing respondents in the petition, who argued that Marcus did not follow the procedures for officially serving the petition.
The attorneys argued that Marcus’s petition should have been served either by the Sheriff’s Office or by a third-party process server, rather than emailed by Marcus.
But section 2.2-3713(C) of Virginia Code states that “the petition for mandamus or injunction shall be heard within seven days of the date when the same is made, provided the party against whom the petition is brought has received a copy of the petition at least three working days prior to filing.”
This language was added to Code in 2011 and was recommended by the Virginia FOIA Council the previous year, according to the Council’s annual report.
The Council had been asked to resolve differences between similar bills entered by the Virginia House of Delegates and Senate.
“The difference between the two bills was that in [the Senate bill] notice was to be served on a public body, while in [the House bill] notice was to be received by the public body,” the report states. “[FOIA Council member Roger] Wiley noted that the use of the word ‘served’ means by the sheriff or other process server and that unnecessarily delays the process.”
By consensus, the FOIA Council agreed to recommend using the word “received’ instead of “served.”
“You do have a right to know about it—not be served with process by the Sheriff,” Rhyne said in a phone call to the Advance. “These procedures are not put in place to be procedural booby traps for citizens who are trying to enforce their rights. Other judges, including in the highest court, have made that point in a number of different cases.”
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