by James A. Bacon
Acting on behalf of The Jefferson Council, Walter Smith has filed a complaint in Henrico County against the University of Virginia, seeking a remedy for its refusal to supply documents under the Freedom of Information Act. Smith serves in a volunteer capacity as chair of the Council’s research committee.
The suit alleges 14 instances in which the University’s FOIA staff improperly denied emails and other documents to the Council. Smith’s FOIA requests asked for documents that would shed light on the inner workings of the University’s administrative decision-making process.
The cases highlighted in the complaint illustrate two main themes. First, UVA’s FOIA lawyers have stretched the presidential “working papers” exemption beyond its original intent of protecting the university president’s personal deliberations. Second, the lawyers did not apply privacy protections to Bert Ellis, a Board of Visitors member who was widely perceived as a threat to the university status quo.
“UVa’s FOIA process seems designed to delay and discourage and deny inquiries that may be embarrassing to the Ryan administration,” said Smith. “The administration says it’s all for open inquiry. These are matters of legitimate interest to the public. It seems hypocritical to hide so much.”
Under Virginia state law, the purpose of the working-papers exemption is to provide high-ranking public executives some privacy in making decisions. If the public can see the decision-making process at every step, the logic goes, officials might be less candid in their personal deliberations. The exemption should be applied sparingly to papers circulated outside the decision-maker’s office, argues the Reporters Committee for Freedom of the Press. In Virginia, argues the Committee, the exemption has been applied excessively.
At UVA the FOIA attorneys work for the University Counsel, who, appointed by the Attorney General, is theoretically independent of the administration. However, the FOIA attorneys are deeply immersed in the university culture, which is broadly sympathetic to President Jim Ryan and hostile to change agents such as Ellis. By their actions, they appear to be representing the interests of the university rather than those of the commonwealth. Ironically, AG Jason Miyares issued an opinion last year finding that members of the Board of Visitors represented the interests of the commonwealth, not the university.
Here follow the details provided in an appendix to the complaint, supplemented with background information to assist readers.
Text messages between former Rector Whitt Clement and President Jim Ryan. UVa’s FOIA team released the emails and text messages of Bert Ellis in a FOIA request filed by a Richmond-area writer. If Ellis’s emails could be made public on the grounds that he was a Board of Visitors member, Smith reasoned, so should the texts of then-Rector Whitt Clement who chaired the Board. Smith filed for texts between Clement and President Jim Ryan between Nov. 1, 2021, and March 3, 2022. UVa withheld 34 texts as presidential “working papers.”
Update: The writer in question, Jeff Thomas, relays the following: “UVA lawyers did not release public documents to me but withheld them. They and then the AG’s office fought me every step of the way in and out of court. After I sued, pro se, and won, public documents were released pursuant to a court order by a judge who found that UVA FOIA attorneys violated FOIA law. The attorneys who broke the law received no sanction, so far as I am aware, which leads me to believe that it is their unofficial job description to violate FOIA. Judging by your article, they seem to be doing so regardless of whose records are FOIAed.I do wish Mr. Smith good luck in his complaint as it will be an uphill battle.”
Community Safety Group papers. As part of Ryan’s “great and good” initiative, UVA has been actively promoting “social justice” in the Charlottesville-Albemarle County community. Smith requested documents from the meetings of the Community Safety group of the President’s Council on UVA-Community Partnerships. The FOIA lawyers declared all documents off limits on the grounds that they were prepared by or for President Ryan for his personal or deliberative use.
Naming and Memorial Committee. The Naming and Memorials Committee was set up in 2021 as an outgrowth of the Racial Equity Task Force to purge the University of any taint of association with the slaveholding/segregation era. UVA lawyers claimed that any and all documents that may have been generated by committee meetings are Ryan’s “working papers,” hence, not available to the public.
Speaker contracts. The University of Virginia has paid significant sums to bring high-profile speakers to the Grounds. These include former Special Counsel Robert Muller, Senator and former presidential candidate Bernie Sanders, and activist civil-rights lawyer Bryan Stephenson. Smith filed a FOIA request to see the contracts and related documents for these speakers. UVA produced a contract for the rental of the John Paul Jones arena for the Stephenson event but it was heavily redacted. Smith also asked to see any written understandings between Ryan and Stephenson on how the event, in which Ryan interviewed Stephenson, would be formatted. UVA produced some correspondence but redacted five pages as working papers.
Student Guides FOIA search fees. The Jefferson Council filed to view correspondence between UVA administrators and the Student Guides student club that escorted students, parents and other visitors on tours of the Grounds, often subjecting them to highly negative commentary about Thomas Jefferson and the history of the University. Wanting to know how the administration was dealing with the problem, the Council asked for summaries or reports relating to the controversy and for correspondence between the administration and the Student Guides. The FOIA team charged the Council $3,000 up front to “ingest” emails from the mailboxes of individuals the team determined would have been involved in overseeing the Guides, plus an additional fee based on how much time it took staff to review and redact the emails.
The UVA email search protocol is cumbersome, expensive, and works to discourage FOIA requests. UVA apparently uses a litigation tool to make sure it doesn’t overlook any relevant documents. In litigation, where one can be sanctioned or receive a spoliation inference, that makes sense. But is it necessary for simple FOIA requests for which a novice can search and pull up relevant documents in seconds? Additionally, FOIA attorneys redacted a number of pages from the production under scholastic and working-papers exemptions. Scholastic exemptions are supposed to delete only the identifying information, not the whole document.
Email correspondence of Danielle Citron. UVA hired Danielle Citron as an 1st Amendment expert under its Jefferson Scholars program. Among her credentials was her service on the Twitter Safety and Advisory Council. Citron stated during a UVA event that she texted Twitter CEO Jack Dorsey during the January 6 riot at the U.S. Capitol Building, to the effect that it was his fault that the “insurrection” was occurring because he had not removed President Trump’s Twitter account. Smith asked for all of her emails and texts from that day. UVA produced one email, asserting that the others were not communicated in the transaction of public business, and no texts.
That exemption was not extended to Bert Ellis. The FOIA team released many unredacted emails and texts that had no direct connection to his Board business. University lawyers even released text threads on which Ellis was copied but he did not engage in. Quotes from the thread appeared in a Virginia Public Media article critical of him.
Admissions policy. Smith asked for documentation describing the University’s admissions policies. He was particularly interested to understand how the office used the College Board’s Landscape tool, which handicapped applicants based on the high school they attended and neighborhood they lived in. Initially, the Admissions office provided some data voluntarily. Then it stopped. “I believe UVA FOIA interceded because the data would reveal discrimination” against Whites and Asians, Smith wrote. UVA is violating the intent of the law by suppressing data that is in the public interest to know, he said.
Ryan’s lobbying agenda. Ryan posted on his Instagram account about his visit to the State Capitol on Jan. 30, 2023, where numerous bills affecting UVa were being considered. Smith asked for a copy of his meeting schedule and copies of any documents exchanged with legislators. UVA initially denied his request but eventually released the agenda and withheld two documents as working papers. Smith filed a complaint in Henrico County court but voluntarily non-suited the case when the university claimed “working papers” again. “Just because a document is delivered to President Ryan does not make it for his deliberative privilege,” he wrote.
Ryan’s deferred compensation package. All public universities in Virginia make public their president’s employment contracts. Ryan’s contract alludes to a deferred compensation package, and Smith asked to see it. “UVA asserted that there were no documents and that all understandings were in the versions provided,” wrote Smith. “There must be some understanding as to how long the salaries are deferred, whether they accumulate interest or some other valuation increase method, what events trigger payment, etc.”
Legal analysis of Supreme Court ruling. After the U.S. Supreme Court issued a ruling restricting racial discrimination in university admissions, Ryan and Provost Ian Baucom released a joint statement responding to the ruling. Smith asked for all drafts of the joint statement. UVA withheld two digital drafts as working papers. The drafts, Smith contends, are not working papers because the exemption is personal to the president of a university, not its provost.
Missing hate mail texts. Erik Ramirez-Weaver, head of the Faculty Senate’s DEI committee, told the committee that he had received a lot of hate mail and texts from what he labeled as the “white supremacist community” after he sponsored a resolution condemning Ellis’s nomination to the Board of Visitors and asked the General Assembly to block his appointment. Smith asked for copies of the threatening emails and texts. The FOIA attorneys provided a copy of one email, which was critical of Ramirez-Weaver’s conduct but not threatening in the least. If the grand total of “hate mail” consisted of one non-threatening email, Smith argued, Ramirez-Weaver should be reprimanded for making up the claim.
Fall 2022 mass shooting. In the fall of 2022, UVA student Christopher Darnell Jones was charged with shooting five fellow students, killing three. Jones had been flagged by university officials as a potential danger and referred to the Judiciary Committee, but no action was taken. Smith asked for the documents presented to the committee, but they were withheld on the grounds that they were scholastic records. In a second request, he asked for assessments made by the Threat Assessment team in 2022-23. All were withheld, based on citations of the state code. However, Smith writes, the code contains an exception for individuals whose actions caused death or serious bodily injury, which Jones’ actions assuredly did.
Free expression committee. In 2o2o Ryan appointed a free expression committee to compose a statement regarding UVA’s policy on free speech. That committee wrote several drafts of the position, the final version of which was adopted by the Board of Visitors. The drafts were shared with all members of the Committee. Only the final version was submitted to Ryan, and only at that point did it become a working paper, Smith contended. Smith asked to see the drafts to get a sense of the debate that took place. His request was denied.
Statement on Israel-Gaza conflict. On November 6, Ryan, Provost Ian Baucom and Chief Operating Officer J.J. Davis issued a statement updating the UVA community on its response to the Hamas-Israel conflict. Smith asked to see the drafts. The FOIA office revealed that there were eight but Smith was not entitled to see them on the grounds that they were working papers. But the working-papers exemption applies to the president alone.
The UVA president sits atop a vast administrative machinery which addresses a wide range of topics critical to the university’s functioning. UVA’s lawyers refuse to let the public see Ryan’s full terms of employment, his communications with the rector and other university officials, his interactions with legislators, the deliberations of important policy-making committees, and guidance from the university counsel’s office regarding U.S. Supreme Court rulings. While zealously protecting Ryan, the same attorneys have opened the FOIA sluice gates to those who use his communications to embarrass Ellis.
UVA, Virginia’s flagship university, is setting a terrible example of transparency.