Virginia Lawyers Weekly//June 4, 2020
Virginia Lawyers Weekly//June 4, 2020//
Where plaintiff reporter sought information concerning a database system from defendant corrections department, the request was “reasonably specific.” Defendant’s late response violated the Virginia Freedom of Information Act.
Plaintiff Harki wrote a series of articles for the Virginian-Pilot about a Virginia Department of Corrections policy regarding strip searches of inmates’ visitors. Harki submitted FOIA requests to VDOC for information about: 1) prison visitors who were strip searched, 2) those who refused, 3) those who were banned from prison facilities, 4) body scanners at prison facilities and 5) “[t]he data dictionary, database schema, or other log that outlines the databases and information requested above.”
VDOC agreed to provide responsive replies to the first four FOIA requests. However, VDOC indicated that there were no records for the fifth FOIA request. Harki followed up by stating that he was interested in the VACORIS system. VDOC later responded that the database schema was “the intellectual property of Abillis Solutions, Inc., which created the CORIS system used for DOC offenders records,” and declined to provide information on that basis.
Shortly after, Shumadine, the attorney Harki hired to help him with the FOIA request, followed up on the matter. VDOC responded to Shumadine and told him that VDOC believed Harki had abandoned the fifth FOIA request. “There is no dispute that the discussions at this time were centered around the VACORIS system created by Abillis and utilized by VDOC.”
On Jan. 23, 2020. Harki restructured his fifth FOIA request into a seven-part FOIA request aimed at obtaining information about procurement and use of computer programs that monitored visitor activity at correctional centers. These requests are the basis of Harki’s FOIA action that is now before the court.
VDOC denied the requests, citing a lack of specificity, and asked Harki to resubmit the requests “with a narrowed scope and greater specificity.”
Harki, though Shumadine, submitted a draft of a writ of mandamus petition. A series of phone calls and a letter to resolve that matter ultimately proved fruitless. Shumadine filed the current action, which is a writ of mandamus and an injunction to obtain the sought-after information. After the filing, VDOC provided Harki with responses to his FOIA request.
Under Code § 2.2-3704(B) a public records request must identify the records “with reasonable specificity.” VDOC argues Harki’s FOIA request lacked the requisite specificity.
On Dec. 9, 2019, after his article was published, Harki sent VDOC a FOIA request with “five different bulleted requests.” Due to some technical difficulties and the holidays, he received responses to the first four requests on Jan. 7, 2020.
He did not receive a response to the fifth bulleted request for a data dictionary and database schema. Harki noted in a prior email that if the requested items did not exist, “he would be happy to receive one for the VACORIS system only. …
“This clearly shows that he wanted a general log of the information and capabilities of the VACORIS system – a clear, narrow, and specific request.” Further, the parties had many phone conversations and exchanged emails. In light of this, Harki’s Jan. 23 FOIA request “is reasonably specific. … Attempting to state otherwise is disingenuous.”
The VDOC did not make “reasonable efforts” to ascertain the information Harki requested and did not ask for additional time to produce the records. Further, when a public body denies a FOIA request, it must, among other things, identify the “volume and subject matter of withheld records” and cite the specific code section that authorizes the public body to withhold the records.
The VDOC did none of these things. Moreover, even if VDOC “had made ‘a request for further specificity,’” this would not have tolled the five-day limit in which VDOC had to respond to the request. “By failing to produce a statutorily prescribed response within the five working day period, VDOC is in violation of FOIA.”
Harki has “substantially prevailed” on the merits of his claim. “If the petitioner substantially prevails on the merits of the case, he is ‘entitled to recover reasonable costs, including costs and reasonable fees for expert witnesses and attorney fees from the public body.’”
To prevail in a FOIA suit, a plaintiff must show that both the letter and spirit of the law was violated. VDOC did not provide the requested material within the statutory period and acted in bad faith by refusing to respond. VDOC produced thousands of responsive documents only after Harki retained counsel.
“Therefore, Harki substantially prevails on the merits of his case, and this Court finds VDOC in violation of FOIA.”
Harki, et al. v. Virginia Dep’t of Corrections, Case No. CL20-2363. April 15, 2020; Norfolk Cir. Ct. (Fulton). Conrad M. Shumadine, Margaret Hoehl O’Shea for the parties. VLW 020-8-043, 14 pp.