Lovettsville Violated FOIA in Facebook Posting Case, Judge Rules

The Town of Lovettsville violated the Virginia Freedom of Information Act in failing to comply with a document request seeking material related to a councilmember’s post in a closed Facebook group, a Loudoun County judge has ruled.

In an order issued Friday, one week after a three-hour trial, District Court Judge Matthew P. Snow issued a $500 civil penalty to the town clerk and awarded $89.44 in court cost and legal fees totaling $7,000 to the plaintiff, Caitlin Keefe.

The case stems from the town’s actions starting in August 2011. Keefe made a series of documents requests under VFOIA, several of which were answered promptly and without charges to her. At least one request was complex or unclear. After exchanges with the town clerk and the interim town manager it was narrowed to request a copy of a posting about a survey for the town’s Okoberfest event that Councilwoman Renee Edmonston had made in the private, invitation-only Facebook group, Lovettsville 20180, and for the comments made to that post. That request became formal on Aug. 30, 2021.

The next day, Town Clerk Candi Choi requested a deposit to cover the estimated $115 cost of processing the request. Keefe responded that Virginia’s FIOA does not authorize advance payment demands for responses costing less than $200. Keefe indicated she planned to forward the issue to the Virginia FOIA Advisory Council, a state agency established to answer questions from private citizens, state and local public officials, and the media about access to public records and meetings. Although the council’s role is to resolve disputes by clarifying what the law requires, Choi, after consulting with then-Interim Town Manager Sam Finz, responded to Keefe that the town viewed her action as a “threat” and would no longer address her FOIA requests. 

During the trial, Finz, who last year retired from a three-decade career in municipal government that included 16 years of leading or consulting with Lovettsville’s town staff, testified that he had no formal FOIA training. Choi had been in her position for just over one year and testified that it was the second FOIA request she had been asked to handle. She had taken an online VFIOA training course.

In his ruling, Snow confirmed that Edmonston’s social media posting was a public record. 

“While the testimony of Choi was that the ‘Town’ did not create, control or have access to Edmonston’s relevant social media post, there was no dispute at trial that the subject matter of the post was relevant to public business and prepared by Edmonston in her role and capacity as a town council member,” Snow wrote.

“While the actions of elected officials, such as posting on social media on matters of public concern, can create a unique retention and production challenge for public bodies and VFOIA compliance, this Court finds that such writings are in fact covered by VFOIA,” he wrote.

Snow found that the town’s demand for advance payment of $115 to complete the records request was “a clear violation of VFOIA.”

The town’s subsequent refusal to complete the FOIA request because of the perceived “threat” was a second violation, because the town failed to cite an exception that would allow the withholding of the record.

After the lawsuit was filed in November 2021, the town did provide copies of the posting and comments, however the town redacted the names and profile photos for the Facebook members posting comments. Virginia FOIA allows governments to withhold some identifying personal information of citizens in its records, however, Snow ruled that the town failed to cite an allowable exemption to justify its redactions, also in violation of VFOIA.

Snow granted a writ of mandamus ordering the town to produce the full posting and comments “without redactions of any kind” within 45 days.

He issued a $500 civil penalty, payable to the Virginia Literary Fund, against Choi in her official capacity. He noted it was the minimum penalty, as her actions indicated she sought to be responsive to Keefe’s request. 

“The Court finds that all of Choi’s actions were made in good faith. Unfortunately, Choi’s actions on behalf for the Town were clearly unlawful,” Snow wrote. 

“She simple made the wrong decisions, but made her decisions willfully and knowingly,” he wrote.

Keefe’s lawsuit also sought an injunction to prohibit the town from refusing to process or respond to her records requests in the future. Snow ruled that was unnecessary as such actions would violate VFOIA.

Snow ordered the town to pay $7,000 in attorney’s fees to Keefe’s lawyer, Andrew T. Bodoh, a FOIA specialist with the firm of Thomas H. Roberts & Associates in Richmond, and to pay Keefe the $89.44 in court cost incurred to file the lawsuit. 

Bodoh said the case was one in which the town staff “clearly stepped out of line following the process.”

He said it was unfortunate that conduct would be costly to the town, but noted that Keefe had offered a settlement last fall asking only that the staff provide the requested documents, admit the mistake, agree to undergo FOIA training and pay the $2,000 in attorney fees accrued at that time.

In a statement issued by Town Manager Jason L. Cournoyer, the town characterized the error as a “technical violation” of the commonwealth’s open government law.

“In August 2021, Caitlin Keefe, a resident of the Town of Lovettsville, submitted a number of Freedom of Information Act (“FOIA”) requests to the Town of Lovettsville (“the Town”). With regard to each request, the Town acted diligently and in good faith to respond. These efforts included offers to meet with or discuss the requests with Caitlin Keefe, with such efforts rejected by her. Due to a misunderstanding, the Town inadvertently committed a technical violation of FOIA in responding to one of Caitlin Keefe’s requests regarding posts to a social media page not owned, managed or controlled by the Town. Catlin Keefe decided to challenge that violation via litigation commencing in November 2021,” Cournoyer wrote.

“On July 15, 2022, the Loudoun County General District Court issued a Memorandum Opinion finding that the Town, while acting with good faith intentions at all times, committed a technical violation of FOIA as it pertains to one of Caitlin Keefe’s many FOIA requests. The Town commits itself to processing all FOIA requests in compliance with the law and continued transparency to all of its residents,” the town manager stated.

4 thoughts on “Lovettsville Violated FOIA in Facebook Posting Case, Judge Rules

  • 2022-07-18 at 2:25 pm

    I’m disgusted with the so-called leaders of Lovettsville. They seem determined to ruin Lovettsville’s stature as a festival definition. The town is becoming Hatesville rather than Lovettsville. This latest fiasco with the FOIA request is outrageous. We need a clean sweep in Lovettsville — for the good of the community. Happy Caviar Day Loudoun!

    • 2022-07-20 at 9:02 am

      A good first step toward cleaning up Lovettsville’s image–and its self-image as well–would be running that gun nuttery store out of business or at least off the street that everyone passes. Giant signs advertising AR-15’s when we see little children being killed by them isn’t a good luck for what’s in danger of becoming Love-it-or-leave-its-ville.

  • 2022-07-18 at 4:12 pm

    3 decades as a government servant with no knowledge of VFIOA, sadly not a surprise.

  • 2022-07-19 at 8:36 am

    If current and future members of the Town Council stuck to the actual issues, the town would be better off. Focus on water/sewer, budgets, zoning, & the numerous events hosted yearly. And, yes, get rid of those ridiculous resolutions that apply to some but not others.

    If you want to play politics and rattle your alt-right saber, do it at the state level and spare the rest of your fanatical clown show. This TC is an embarrassment.

    Frankly, I’m surprised a few of them haven’t been sued for defamation based on posts/comments I’ve read over the years. Such unprofessional behavior from sitting council members.

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