V I R G I N I A:

IN THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE

WILLIAM N. EVANS, )
Petitioner )
)
v. ) Case No. _________________
)
)
CITY OF CHARLOTTESVILLE )
Defendant/Respondent )

and

WILLIAM N. EVANS )
Petitioner/Intervenor )
)
v. )
) Case No. _________________
)
JOSEPH D. PLATANIA, )
COMMONWEALTH’S ATTORNEY )
FOR THE CITY OF CHARLOTTESVILLE )
Defendant/Respondent )

MEMORANDUM OF LAW IN SUPPORT OF PETITIONER’S MOTIONS

Petitioner WILLIAM N. EVANS, representing himself pro se, hereby produces the

following memorandum of law in support of his motions, in which he seeks access to two video

recordings that were played and entered into evidence at the preliminary hearing of James Alex

Fields on December 14, 2017.

The memorandum starts on the next page.

 Argument

Respondents’ argument1 appears to be that public records, once publicly available as

evidence in an open court proceeding, can later lawfully be removed from the case file by the

Commonwealth’s Attorney through a motion “to withdraw all exhibits”, and that after a Virginia

Freedom of Information Act (“VFOIA”) request, these once-public records can be witheld from

Virginia citizens like Petitioner WILLIAM N. EVANS (“Evans”) by citing the criminal

investigative file discretionary disclosure provision in VFOIA § 2.2-3706 (A)(2)(a).

This argument relies on two unsubstantiated facts – (1) that the Commonwealth’s

Attorney issued a motion “to withdraw all exhibits” in the first place; and (2) that this motion

was granted by the General District Court prior to the moment when it certified the Fields case to

the grand jury, thereby transferring jurisdiction to this Circuit Court.2 Neither fact is

corroborated by the preliminary hearing transcript.3

Even if the motion “to withdraw all exhibits” was made and granted prior to certification,

Respondents’ position – that this motion acts, in effect, as a motion to seal, without having to

comply with the procedures and standards required for such a motion – was expressly rejected by

the Virginia Supreme Court in Daily Press, Inc. v. Commonwealth of Virginia, 285 Va. 447

(2013). In that case, the Court held that an identical motion “to withdraw original exhibits” was,

in fact, a motion to seal and subject to the same requirements as a sealing motion.4

As the Court explained in Daily Press, any other interpretation of a motion “to withdraw

all exhibits” would (1) undermine the legislative intent of the Virginia Code, which preserves the

public’s right to examine judicial records; and (2) violate the public’s well-established right

under the First Amendment and Virginia Constitution to access criminal proceedings. To allow
1
See Evans Aff. ¶¶ 27-28, 40.
2
VA Code § 16.1-69.55 says that in felony cases certified to a grand jury, “all documents shall be certified
to the clerk of the appropriate circuit court[.]”
3
See Evans Aff. ¶¶ 18-22.
4
Daily Press, Inc. v. Commonwealth of Virginia, 285 Va. 447, 454-55 (2013).

1
the alleged motion “to withdraw all exhibits” in the James Alex Fields case to vitiate Evans’s

VFOIA requests would also (3) ignore the application of the common-law waiver principle in the

VFOIA context. This brief addresses each point in turn after examining Daily Press.

1. Daily Press, Inc. v. Commonwealth of Virginia, 285 Va. 447 (2013).

In Daily Press, the Virginia Supreme Court interpreted a motion “to withdraw original

exhibits” that is identical to the motion allegedly used by the Commonwealth’s Attorney at

James Alex Fields’s preliminary hearing. The holding of Daily Press is controlling here.

Petitioner in that case was The Daily Press, a newspaper published in Newport News,

Virginia, that was covering the trials of a mother, Lillian Callender, and her boyfriend, Michael

Stoffa, for the murder of Callender’s seventeen-month-old daughter. The two defendants were

tried separately and in sequence, though much of the evidence was the same. Callender was tried

first, in January 2011, and was convicted of the murder of her young daughter. At her trial,

graphic autopsy reports and photographs of the deceased seventeen-month-old child were

introduced into evidence and shown in open court.5

In March 2011 – after Callender’s trial and conviction, but before Stoffa’s trial, which

was scheduled for May 2011 – a reporter from the Daily Press asked the clerk of the circuit court

for permission to review the Callender case file, including the autopsy reports and photographs

of the deceased child. The clerk denied this request and, on March 28, 2011, the circuit court

“entered an order sealing the entire Callender case file from public inspection until the

conclusion of Callender’s and Stoffa’s cases.”6 This order was issued “without notice or

hearing,” in violation of the public’s First Amendment right to observe criminal proceedings.7

On April 12, 2011, the Daily Press “filed a consolidated motion to intervene and motion

5
Id. at 450.
6
Id. at 450-51.
7
Daily Press, Inc. v. Commonwealth of Virginia, 60 Va. App. 213, 216 & n. 3 (2012).

2
for withdrawal of the sealing order.”8 On April 20, 2011, the circuit court granted the motion

and rescinded its March 28 sealing order, recognizing that “the order ‘was overbroad in sealing

the entire file.’”9 But instead of allowing the reporters at the Daily Press to review the Callender

case file, and because of a stated “concern for [the second defendant] Stoffa’s ‘due process’

rights,”10 the circuit court entered a consent order on April 20, which

“allowed the attorneys for Callender and the Commonwealth ‘to withdraw the
original exhibits from the Callender file to be used in the trial of the co-defendant
[Stoffa’s] case, said exhibits to be returned to the Callender file should an appeal
be noted in her case.’”11

The effect of the circuit court’s April 20 order was identical to its earlier sealing order.

The Commonwealth’s exhibits from the Callender trial were concealed from public view by

order of the court, unless and until they were re-used in Stoffa’s trial or Callender filed an

appeal. At the time of the circuit court’s consent order, one defendant (Callender) had already

been tried and convicted of murder, but the other defendant (Stoffa) had yet to be tried on the

same evidence.12 It is notable that, when granting the April 20 consent order, “the court

expressed concern over protecting the rights of Stoffa and the Commonwealth in Stoffa’s

pending trial.”13 Thus, in effect, the April 20 order to “withdraw the original exhibits” was

preliminary to the trial of the second defendant (Stoffa).

The Daily Press, as intervenor, challenged the consent order and petitioned the Virginia

Court of Appeals for a writ of mandamus.14 After the Court of Appeals denied the petition on

jurisdictional grounds,15 the Daily Press appealed to the Virginia Supreme Court.16

8
Id. at 216; Daily Press, Inc. v. Commonwealth of Virginia, 285 Va. 447, 451 (2013).
9
Daily Press, 285 Va. at 451 (quoting the circuit court’s April 20 order) (emphasis in original).
10
Daily Press, 60 Va. App. at 216 (quoting the circuit court’s April 20 order).
11
Daily Press, 285 Va. at 451 (quoting the circuit court’s April 20 order) (emphasis added).
12
Id. at 450.
13
Id. at 451.
14
Daily Press, Inc. v. Commonwealth of Virginia, 60 Va. App. 213 (2012).
15
Id. at 220-23 (denying mandamus on the basis of its “jurisdiction under Code § 17.1-406(A)(i)”).

3
 The Virginia Supreme Court vacated the circuit court’s order to “withdraw the original

exhibits”.17 The Court held that the Commonwealth’s motion “to withdraw the original exhibits”

was equivalent to a motion to seal the evidence and, in turn, held that the court order granting the

motion was a sealing order.18 The Court explained, citing decades-old precedent, that

“Court documents can only be sealed on the basis of ‘an interest so compelling
that it cannot be protected reasonably by some measure other than a protective
order,’ and ‘any such order must be drafted in the manner least restrictive of the
public’s interest.’”19

As the Court explained, before granting a motion to seal, “courts are required to justify

any decision to close with specific reasons and findings on the record.”20 Because the reasons

provided by the circuit court to justify granting the “motion to withdraw original exhibits . . .

were speculative and not supported by particularized factual findings”,21 the Virginia Supreme

Court vacated the circuit court’s consent order, holding that it “violated the Constitution of the

United States and the Constitution of Virginia, [and] also violated [VA] Code § 17.1-208.”22

The Court’s ruling in Daily Press controls this case. The granting of an oral motion “to

withdraw all exhibits”, without advance notice to the public, and without justification or

explanation in the record, has the same effect as a sealing order because it conceals the evidence

from the public. Such an order undermines the legislative intent of the Virginia Code, which

preserves the public’s right to examine judicial records, and violates the public’s well-established

First Amendment right to access criminal proceedings. The Virginia Supreme Court addressed

these issues in Daily Press, which are outlined in greater detail in parts (2) and (3) below.

16
Daily Press, Inc. v. Commonwealth of Virginia, 285 Va. 447, 451 (2013).
17
Id. at 456. The Virginia Supreme Court would have granted the mandamus petition, but by the time of its
review in 2013, Stoffa had been tried and convicted, Callender had appealed her conviction, and the
autopsy reports and photographs of the decedent were once again available to the public. Id. at 451-52.
18
See id. at 454-55 (describing the lower court’s order as a “sealing order”).
19
Id. at 456 (2013) (quoting Shenandoah Publ’g House, Inc. v. Fanning, 235 Va. 253, 259 (1988)).
20
Daily Press, Inc. v. Commonwealth of Virginia, 285 Va. 447, 453-55 (2013).
21
Id. at 452-55.
22
Id. at 456.

4
 2. The Virginia Code

The framework of the Virginia Code evinces a clear intent by the General Assembly to

give the public access to criminal case records, including exhibits filed as evidence in criminal

cases. The Code establishes that in felony cases, like the James Alex Fields case, brought before

a General District Court and “certified to the grand jury, all documents shall be certified to the

clerk of the appropriate circuit court[.]”23 The term “documents” as defined in the Code includes

“documents received in evidence,”24 like the two videos that were entered into evidence at

Fields’s preliminary hearing. A court may “presume that the records from the general district

court were certified to the circuit court as provided by Code § 16.1-69.55(A)(2) when [the

defendant’s] felony charges were certified to the grand jury.”25

Once the documents reach the clerk of the circuit court, the Virginia Code provides that

“[e]xcept as otherwise provided by law, any records that are maintained by the clerk of the

circuit court shall be open to inspection by any person[.]”26 Interpreting an earlier, substantively

identical version of this Code provision,27 the Virginia Supreme Court held in Shenandoah

Publishing House, Inc. v. Fanning, 235 Va. 253 (1988), that

“[A] rebuttable presumption of public access applies in civil proceedings to

judicial records[.] . . . [T]o overcome that presumption, the moving party must bear
the burden of establishing an interest so compelling that it cannot be protected
reasonably by some measure other than a protective order[.] . . . [A]ny such order
must be drafted in the manner least restrictive of the public’s interest.”28

In Daily Press, the Virginia Supreme Court explained that Virginia’s statutory

presumption of public access to court records extends to criminal cases as well, holding that

23
VA Code § 16.1-69.55(A)(2).
24
VA Code § 16.1-69.53.
25
Snowden v. Virginia, 62 Va. App. 482, 486 (2013).
26
VA Code § 17.1-208.
27
VA Code § 17-43 provided that “The records and papers of every court shall be open to inspection by any
person and the clerk shall, when required, furnish copies thereof[.]”
28
Shenandoah Publ’g House, Inc. v. Fanning, 235 Va. 253, 258-59 (1988) (citing Nebraska Press Assn. v.
Stuart, 427 U.S. 539, 563-65 (1976)).

5
“Code § 17.1-208’s statutory presumption of access is equivalent to the constitutional right of

access” under the First Amendment and Article I, Section 12 of the Virginia Constitution.29

Virginia Attorney General Mary Sue Terry affirmed this statutory presumption in an

advisory opinion published in 1987.30 Interpreting the same statutory language that the Virginia

Supreme Court would analyze the following year in Shenandoah Publishing, the Attorney

General said that the then-extant Virginia Code provision, § 17-43, which is substantively

identical to the current code,

“mandate[s] the right of the public to access all information of court proceedings
classified as records or papers, unless the access is precluded by another statute or
provision of law. . . . It is my opinion, therefore, that if exhibits are offered into
evidence . . . they become a part of the court’s record and are ‘public records’
generally subject to disclosure under [the Virginia Code].”31

Attorney General Terry recognized certain exceptions to this general rule of public access

to court records, namely (1) the court’s “inherent power to control proceedings” before it in order

to “safeguard a recognized privilege or to protect the life or safety of any person,” and (2) the

court’s “duty to safeguard” the defendant’s Sixth Amendment right to a fair trial.32 Besides

those two situations – neither of which are implicated by the videos shown at Fields’s

preliminary hearing33 – Attorney General Terry believed that “exhibits offered into evidence are

public records generally subject to public access[.]”34

VFOIA’s criminal investigative file discretionary disclosure provision,35 cited by

29
Daily Press, 285 Va. at 456 (citing Shenandoah Publ’g, 235 Va. at 259).
30
See 1987-1988 Att’y Gen. Ann. Rep. at 255-57, “Public access to exhibits offered into evidence at trial;
limitations.” (Nov. 13, 1987).
31
Id. at 255-56.
32
Id. at 256.
33
From the media accounts and the transcript, the two videos shown at the hearing appear substantially less
graphic than other videos of the August 12 incident that are freely available on the internet. And Fields’s
defense attorney, Denise Lunsford, consented to the videos’ admission into evidence without raising any
Sixth Amendment concerns on behalf of her client. See Evans Aff. ¶ 18(d).
34
1987-1988 Att’y Gen. Ann. Rep. at 256.
35
VFOIA § 2.2-3706 (A)(2)(a).

6
Respondents in their rejection of Evans’s VFOIA requests,36 does not alter the existing statutory

framework creating a strong presumption in favor of public access to court records. Indeed,

VFOIA § 2.2-3703.1 contains a carve out that preserves the Code’s judicial records provisions.37

The Circuit Court of Fairfax County recently interpreted this code section to mean that

discretionary exemptions enumerated in VFOIA, like the criminal investigative file provision

cited by Respondents, “cannot represent a compelling interest that rebuts the presumption of

public access to judicial records . . . [and do not] rebut the presumption of openness for judicial

records” established by the Virginia Code. Tianti v. Rohrer, 91 Va. Cir. 111 (Fairfax 2015).

Federal courts have interpreted a similar carve out in the federal FOIA statute in the same way.38

3. First Amendment of the United States Constitution

a. The Public’s Right of Access to the Fields Preliminary Hearing

The constitutional right of United States citizens to attend and observe criminal trials

conducted in the Commonwealth “is implicit in the guarantees of the First Amendment; without

the freedom to attend such trials, which people have exercised for centuries, important aspects of

freedom of speech and of the press could be eviscerated.” Richmond Newspapers, Inc. v.

Virginia, 448 U.S. 555, 580 (1980). “Public scrutiny of a criminal trial enhances the quality and

safeguards the integrity of the factfinding process, with benefits to both the defendant and to

society as a whole.” Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596,

36
See Evans Aff. ¶¶ 27, 40.
37
“Nothing contained in this chapter shall have any bearing upon disclosures required to be made pursuant
to any court order or subpoena. No discretionary exemption from mandatory disclosure shall be construed
to make records covered by such discretionary exemption privileged under the rules of discovery, unless
disclosure is otherwise prohibited by law.” VFOIA § 2.2-3703.1.
38
See Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1185 (9th Cir. 2006) (“[W]e will not import
wholesale FOIA exemptions as new categories of documents ‘traditionally kept secret’[.]”).

7
606 (1982). Virginia further protects the First Amendment right of access to criminal

proceedings in Article I, Section 12 of the Virginia Constitution.39

The public right of access protected by the First Amendment extends to the preliminary

hearing. As the United States Supreme Court explained in Press-Enterprise Co. v. Superior

Court of California, 478 U.S. 1 (1986), the preliminary hearing “is often the final and most

important step in the criminal proceeding” and “in many cases provides the sole occasion for

public observation of the criminal justice system.”40 In that decision, the Court was persuaded

by the “tradition of accessibility” of preliminary hearings, relying in particular on what is,

perhaps, the most famous preliminary hearing in the history of the Commonwealth of Virginia.

“Long ago in the celebrated trial of Aaron Burr for treason . . . the probable-cause
hearing was held in the Hall of the House of Delegates in Virginia, the courtroom
being too small to accommodate the crush of interested citizens. United States v.
Burr, 25 F.Cas. 1 (No. 14,692) (CC Va. 1807). From Burr until the present day,
the near uniform practice of state and federal courts has been to conduct
preliminary hearings in open court.”41

The public right of access protected by the First Amendment includes the right to inspect

exhibits filed as evidence in criminal cases. As the Virginia Supreme Court explained in Globe

Newspaper Co. v. Commonwealth of Virginia, 264 Va. 622 (2002):

“The right of access is not limited to attendance at criminal proceedings. Under

certain circumstances and with qualifications, it extends to inspection of
documents filed in connection with such proceedings.”42

This principle was reiterated again in Daily Press: “This constitutional right of access

extends to the inspection of documents filed in [criminal] proceedings.”43

39
See Daily Press, 285 Va. at 454 n. 7 (“Daily Press asserts that it has a constitutional right of access under
the First Amendment of the Constitution of the United States and Article I, § 12 of the Constitution of
Virginia. These provisions are virtually identical.”).
40
Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 12 (1986).
41
Id. at 10.
42
Globe Newspaper Co. v. Commonwealth of Virginia, 264 Va. 622, 628 (2002).
43
Daily Press, 285 Va. at 455 (citing Globe Newspaper, 264 Va. at 628).

8
 The public’s right to inspect exhibits filed as evidence extends as far as its right of access

does, and thus provides a right to inspect exhibits filed during preliminary hearings. See, e.g., In

re Times World Corp., 25 Va. App. 405, 419 (1997) (providing public access to documents filed

as evidence in a pre-trial competency hearing); In re Washington Post, 807 F.2d 383, 390 (4th

Cir. 1986) (giving public access to documents filed in connection with a pre-trial plea hearing).

Thus, the public has a qualified First Amendment right to access and examine the

exhibits that were entered into evidence at the December 14, 2017, preliminary hearing in the

Fields case. This includes the two videos that were the subject of Evans’s VFOIA requests.

b. Procedural Prerequisites to Limiting the Public’s Right of Access

If the Commonwealth Attorney motioned “to withdraw all exhibits” at the conclusion of

Fields’s preliminary hearing, this was, in effect, a motion to seal. In Daily Press, the Virginia

Supreme Court interpreted an identical motion “to withdraw the original exhibits” as a motion to

seal and, in turn, held that the court order granting that motion was equivalent to a sealing

order.44 It found that the circuit court’s sealing order failed to satisfy important procedural

prerequisites that protect the public’s First Amendment right of access, and therefore vacated the

circuit court’s consent order granting the motion.45

Daily Press is controlling here. The Commonwealth’s Attorney’s motion “to withdraw

all exhibits” in the Fields case, if it exists, should likewise be interpreted as a motion to seal. In

turn, the General District Court’s order granting the motion, if one was made in time, should be

interpreted as a sealing order. To survive Evans’s mandamus petition, this sealing order must

satisfy the procedural prerequisites that the consent order in Daily Press did not.

In other words, if the Commonwealth wants to limit the public’s First Amendment right

of access to the evidence filed at Fields’s preliminary hearing, it must satisfy the stringent
44
Daily Press, 285 Va. at 454-55 (describing the lower court’s order as a “sealing order”).
45
Id. at 455-56 (finding that the “rationales” provided by the circuit court for its granting of the motion
“were speculative and not supported by particularized factual findings”).

9
procedural safeguards set forth by the United States Supreme Court in Globe Newspaper Co. v.

Superior Court for Norfolk County, 457 U.S. 596 (1982).

“Where, as in the present case, the State attempts to deny the right of access in
order to inhibit the disclosure of sensitive information, it must be shown that the
denial is necessitated by a compelling government interest, and is narrowly
tailored to serve that interest.”46

The Fourth Circuit, interpreting Globe Newspaper in In re Washington Post, 807 F.2d

383 (4th Cir. 1986), laid out the specific “procedures that must be followed as prerequisites to a

closure order in a criminal proceeding.”47 Before closing or sealing the record of a criminal case,

the “court must give the public adequate notice that the closure of a hearing or the sealing of

documents may be ordered.”48 Sealing motions must be “docketed reasonably in advance of

their disposition so as to give the public and press an opportunity to intervene and present their

objections to the court,” and before granting a motion to seal, the court “must provide interested

persons an opportunity to object to the request before the court ma[kes] its decision.”49

Most importantly, as the United States Supreme Court emphasized later in Press-

Enterprise, the court must make “specific, on the record findings” before closing or sealing the

record of a criminal proceeding “demonstrating that closure is essential to preserve higher values

and is narrowly tailored to serve that interest.”50 The court’s “findings must be specific” and

“the court must state its reasons for rejecting alternatives to closure.”51

Where, as here, no such findings were made on the record by the lower court, mandamus

is an appropriate remedy. Richmond Newspapers v. Commonwealth of Virginia, 222 Va. 574,

46
Globe Newspaper, 457 U.S. at 606-07 (emphasis added). See also Daily Press, 285 Va. at 455 (same).
47
In re Washington Post, 807 F.2d at 390 (emphasis added).
48
Id.
49
Id.
50
Press-Enterprise, 478 U.S. at 13-14; see also Daily Press, 285 Va. at 455 (“To ensure stringent
safeguarding of the constitutional rights at stake, courts are required to justify any decision to close with
specific reasons and findings on the record.”).
51
In re Washington Post, 807 F.2d at 391; see also Richmond Newspapers v. Commonwealth of Virginia,
222 Va. 574, 590 (1981) (same).

10
592-93 (1981) (granting mandamus); In re Washington Post, 807 F.2d 383, 393 (4th Cir. 1986)

(same); In re Times World Corp., 25 Va. App. 405, 419 (1997) (same).

c. Examples of Application in Virginia Courts

In Richmond Newspapers v. Commonwealth of Virginia, 222 Va. 574 (1981), the Virginia

Supreme Court held that the trial court could not close a pretrial hearing on a motion to suppress

without providing advance notice to the public and allowing interested third parties the

opportunity to intervene and challenge the order. The Court explained that “before a hearing is

closed, interested members of the public should have a right to be heard” because “[i]ntervention

is necessary to give substance to the qualified right of access” inherent in the First Amendment.52

To ensure that the public’s First Amendment rights were protected, the court ruled that “motions

to close a [pre-trial] hearing should be made in writing and filed with the court before the day of

the hearing.”53 Furthermore, “the public must be given reasonable notice that a closure hearing

will be conducted.”54 Because in Richmond Newspapers the requisite findings had not been

made by the trial court, the Virginia Supreme Court granted the petitioner’s mandamus request.55

Likewise, in In re Times World Corp., 25 Va. App. 405 (1997), the Virginia Court of

Appeals held that the public has a “qualified right” under the First Amendment and Article 1,

Section 12 of the Virginia Constitution to access pre-trial compentency hearings and the

documents filed during such hearings.56 The court held that, before closing the hearing or

sealing any evidence in such a hearing, “[t]he trial judge shall articulate on the record his

findings that the evidence supports the moving party’s contention that an open hearing would

52
Richmond Newspapers v. Commonwealth of Virginia, 222 Va. 574, 590 (1981).
53
Id.
54
Id.
55
Id. at 592-93 (ordering the lower courts to “release forthwith to the intervenors any and all recordings and
transcriptions of the closed hearings not heretofore released”).
56
In re Times World Corp., 25 Va. App. 405, 415, 419 (1997).

11
jeopardize the defendant’s fair trial rights” or another “compelling governmental interest”.57

Because no such “findings of fact” were articulated by the trial court “in support of the closure

order”, the Virginia Court of Appeals granted the petitioner’s mandamus request.58

d. Application to the Fields Preliminary Hearing

The General District Court did not adequately protect the public’s First Amendment right

of access to the Fields preliminary hearing. It did not satisfy any of the stringent procedural

prerequisites described above before it granted the Commonwealth’s Attorney’s unintelligible

motion,59 which Respondents say is a motion “to withdraw all exhibits”. When it granted the

motion after the conclusion of Fields’s preliminary hearing, it did so:

i. Without providing prior notice to the public that it would be sealing the
two videos;60
ii. Without explaining its rationale for sealing the videos in the record of the
case;61 and
iii. Without demonstrating that sealing the two videos is “essential to preserve
higher values and is narrowly tailored to serve that interest.”62

Thus, in granting the “motion to withdraw all exhibits”, the General District Court failed

to preserve the public’s First Amendment right to access to the record of Fields’s preliminary

hearing. Its order should be overturned and the two videos returned to the publicly-accessible

record of the case.

57
Id. at 416 (emphasis in original), quoting Richmond Newspapers v. Virginia, 222 Va. 574, 590 (1981).
58
In re Times World Corp., 25 Va. App. at 419.
59
See Evans Aff. ¶¶ 18-22.
60
See In re Washington Post, 807 F.2d at 390. Indeed, before the two videos were played at Fields’s
preliminary hearing on December 14, 2017, the public had not even received notice that the two videos
existed. Nor had the public received any notice that the two videos would be introduced into evidence
prior to the moment when the two videos were actually played in court. See Evans Aff. ¶¶ 17-18.
61
See Richmond Newspapers, 222 Va. at 590. Indeed, both the Commonwealth’s alleged “motion to
withdraw all exhibits” and the General District Court’s alleged granting of this motion are not even
contained in the record. The unintelligible motion was made orally by the Commonwealth’s Attorney, and
it was granted orally by the judge. See Evans Aff. ¶¶ 17-18.
62
Press-Enterprise Co. 478 U.S. at 13-14; see also Daily Press, 285 Va. at 456. Indeed, there is nothing in
the public record that explains the Commonwealth’s Attorney’s reason for issuing, nor the General District
Court’s reason for granting, this alleged motion “to withdraw all exhibits”. See Evans Aff. ¶¶ 17-18.

12
 4. Common Law Waiver under Virginia’s Freedom of Information Act

By publicly releasing the two videos at Fields’s preliminary hearing, Respondents waived

their right to withhold these public records under VFOIA. The VFOIA provision cited by

Respondents to justify withholding the videos allows public bodies to, in their “discretion,”

withhold public records that are part of “criminal investigative files”.63 Respondents already

exercised that discretion in favor of release when they played the videos as evidence, showing

them in open court to the people present at Fields’s preliminary hearing on December 14, 2017,

which included national media correspondents and avowed white nationalist Jason Kessler.64

The primary purpose of VFOIA is to “facilitate openness in the administration of

government.” American Tradition Institute v. University of Virginia, 287 Va. 330, 338 (2014).

As set forth in the text of the statute itself,

“The provisions of this chapter shall be liberally construed to promote an

increased awareness by all persons of governmental activities and afford every
opportunity to citizens to witness the operations of government. Any exemption
from public access to records or meetings shall be narrowly construed[.]” 65

a. Common Law Waiver in Freedom of Information Act Cases Generally

The case law on common law waiver is clear. When specific, identifiable public records

have already been released to the public by the government, a public body can no longer

withhold the same public records under FOIA. Consider a federal FOIA case on similar facts,

Cottone v. Reno, 193 F.3d 550 (D.C. Cir. 1999),66 in which the petitioner sought via federal

FOIA the wiretapped recordings of telephone conversations that had been played as evidence

63
VFOIA § 2.2-3706 (A)(2)(a).
64
See Evans Aff. ¶¶ 14-16, 45-48.
65
VFOIA § 2.2-3700 (emphasis added).
66
Though Cottone is a federal FOIA case, it applies common law waiver principles that are equally
applicable to a VFOIA case like the present matter. In neither federal FOIA nor in VFOIA are these
common law waiver principles denoted in the statutory language.

13
during the trial of an alleged mafioso. In its opinion granting mandamus to petitioner, the D.C.

Circuit described how the wiretapped evidence was used and the condition of the trial record.

“In open court, before the jury and the public gallery, the government played these
tapes and introduced them into evidence. As is the practice when tapes are played
at trial, however, the court reporter did not transcribe the contents of the recorded
conversations into the trial transcript. Rather, with each tape that the government
played, the reporter indicated in the transcript the precise date and time that the
conversation had been recorded, the unique identification number assigned to that
tape at trial, and noted that it had been ‘played for the Court and jury.’”67

The Cottone court ordered disclosure under federal FOIA even though, absent prior

disclosure, the wiretapped recordings would have been statutorily exempt, and even though the

trial record did not contain the contents of the wiretapped recordings. As the court explained,

“materials normally immunized from disclosure under FOIA lose their protective cloak once

disclosed and preserved in a permanent public record” because “the logic of FOIA mandates that

where information requested is truly public, then enforcement of an exemption cannot fulfill its

purposes.”68 The “permanent public record” in Cottone were the specific references in the public

trial record to the identification numbers of the wiretapped recordings that were played in

court.69 This sufficed even though the public trial record did not contain a transcript of what was

said in the recordings.70

The common-law waiver principle has been applied in FOIA cases across jurisdictions

and in all manner of circumstances. See, e.g., State of N. D. ex rel. Olson v. Andrus, 581 F.2d

177 (8th Cir. 1978) (holding that the voluntary disclosure of an otherwise exempt agency record

during litigation with another party acted as a waiver); Shell Oil Co. v. IRS, 772 F. Supp. 202,

211 (D. Del. 1991) (finding waiver because an agency employee read aloud an entire draft

document that was otherwise exempt from disclosure at a public meeting); Oregonian Publishing

67
Cottone v. Reno, 193 F.3d 550, 552 (D.C. Cir. 1999).
68
Id. at 554.
69
Id. at 554-55.
70
Id. at 552.

14
Co. v. Portland School District No. 1J, 952 P.2d 66 (Or. App. 1998) (ruling that state FOIA

exemption for confidential personnel evaluation documents had been waived when the

evaluation was read into the record at an unemployment compensation hearing).

Here, the public record contains several (sometimes contradictory) recitations of the

contents of the two videos from sources as diverse as CNN, the Washington Post, the Associated

Press, and Jason Kessler.71 These recitations focus in particular on the pre-collision movements

of Fields’s Dodge Challenger,72 which are of great interest to the general public. The public

record in this case is far more extensive than the public record in Cottone. Moreover, but for the

General District Court’s failure to preserve the record of Fields’s preliminary hearing, in

violation of statute and of the public’s First Amendment right of access, the public record would

still contain the videos themselves.

b. “Selective Disclosure” Makes Waiver More Likely

Courts are especially likely to find that waiver has occurred when the public records at

issue have been selectively disclosed to some, but not all, members of the public. Consider

Kimberlin v. Department of Justice, 921 F.Supp. 833 (D.D.C. 1996), in which the requested

public records had been deliberately leaked to certain news agencies. The court granted

petitioner’s mandamus request and ordered disclosure under federal FOIA because it recognized

that, if it did not, “Justice Department officials could selectively disclose non-public information

to favored sources and then invoke FOIA exemptions to prevent disclosure to press sources not

in their favor.”73

This principle was reiterated in Natural Resources Defense Council v. U.S. Department

of Defense, 442 F.Supp.2d 857 (C.D. Cal 2006), in which the court ordered disclosure of public

records that the Defense Department had voluntarily provided to a private lobbying entity, but
71
See Evans Aff. ¶¶ 45-48, 59-60.
72
See Evans Aff. ¶¶ 48, 59.
73
Kimberlin v. Department of Justice, 921 F.Supp. 833, 835 (D.D.C. 1996).

15
later withheld under federal FOIA from the NRDC. As the court explained, “FOIA does not

permit selective disclosure of information only to certain parties . . . [because] ‘once there is

disclosure, the information belongs to the general public.’”74

Here, the consequence of allowing the alleged motion “to withdraw all exhibits” is that

the public record of the Fields case is materially deficient. Only those present in the courtroom

on December 14, 2017, have been permitted to view the two videos. Thus, reporters from the

New York Times, the Washington Post, CNN, and the Associated Press have viewed the videos,

and Jason Kessler has viewed the videos,75 but Mr. Evans and the broader public have not. This

is the epitome of selective disclosure.

c. Application in Virginia Courts

Virginia courts recognize that the common-law waiver doctrine applies in the VFOIA

context. For example, in Fenter v. Norfolk Airport Authority, 274 Va. 524 (2007), the Virginia

Supreme Court ruled that a public body had waived VFOIA exemptions by failing to respond to

a request within the statutory time. And in Lawrence v. Jenkins, 258 Va. 598 (1999), the

Virginia Supreme Court ruled that waiver did not take place only because the VFOIA violation

was a mere technicality,76 and therefore “did not operate as a waiver of Lawrence’s otherwise

valid exercise of an applicable exemption.”77 As the Virginia Supreme Court recently noted in

the context of a claimed “proprietary information” exemption, “[t]hat the information has not

been publicly released is a requirement of the exemption.” American Tradition Institute v.

University of Virginia, 287 Va. 330, 344 n. 8 (2014).

74
Natural Resources Defense Council v. U.S. Department of Defense, 442 F.Supp.2d 857, 866 (C.D. Cal
2006) (emphasis in original) (quoting Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 174
(2004)).
75
See Evans Aff. ¶¶ 14-16.
76
Lawrence v. Jenkins, 258 Va. 598, 602 (1999) (acknowledging that Respondent, the zoning administrator
for Frederick County, “technically violated Code § 2.1-342(A)(3) by failing to refer to the specific Code
section making the identity of the complainants exempt from disclosure” under VFOIA) (emphasis added).
77
Id. at 603.

16
 The most instructive Virginia Supreme Court case on waiver in the VFOIA context, Tull

v. Brown, 255 Va. 177 (1998), requires additional explanation. Petitioners in that case were

news organizations who sought access, through VFOIA, to the audio recording of a 911 call

related to the controversial death of a young child.78 The Respondent, Sheriff of Surry County,

withheld the audio recording of the 911 call under a then-applicable statutory exemption,79 but

voluntarily disclosed a transcript of the 911 call to the news organizations.80

The Virginia Supreme Court did not find waiver in Tull, but it predicated its ruling on the

fact that the Sheriff’s Department had voluntarily disclosed only the 911 call transcript, not the

audio recording that was the subject of the VFOIA request. The Court held that the Sheriff’s

public disclosure of the 911 call transcript did not act as a waiver of the Sheriff’s Department’s

right to invoke the statutory exemption with regard to the 911 call audio recording itself:

“[T]he fact that Sheriff Brown voluntarily provided a transcript of the specific
911 call does not waive his right to deny access to the actual tape under this
exemption.”81

The ruling in Tull is consistent with the principle, recognized across jurisdictions, that

waiver only applies to the specific record that is publicly disclosed. Representative of this class

is Davis v. Department of Justice, 968 F.2d 1276 (D.C. Cir. 1992), in which the petitioner

sought, via federal FOIA, wiretapped recordings that had been publicly played at a federal

bribery trial a decade earlier. The petitioner requested copies of all 163 wiretapped recordings

listed in a “play list” assembled by prosecutors prior to the trial.82 But he could not, after so

78
Tull v. Brown, 255 Va. 177, 180-81 (1998) (explaining that news organizations sought access “to the tape
recording made at the county dispatch office, containing conversations involving and related to the call
from the home of Wayne and Lisa Rickman to the Surry County 911 system on Tuesday, Nov. 21, 1995”).
79
Id. at 183-84 (explaining that the 911 audio tape “is exempt from disclosure under Code § 15.1-135.1 as
[a] ‘noncriminal incidents records’”) (quoting VA Code § 15.1-135.1, repealed on Dec. 1, 1997).
80
Id. at 181 & n.3 (“Sheriff Brown did [ ] provide the Media with a transcript of the recorded conversations
relating to this incident. A court reporter prepared the transcript after listening to the separate channels on
the tape and integrating the various recordings into one document.”).
81
Id. at 184 (emphases added).
82
Davis v. Department of Justice, 968 F.2d 1276, 1278 (D.C. Cir. 1992).

17
many years, demonstrate precisely which of the recordings were actually introduced into

evidence and played in court – some had been, but some had not.83 The D.C. Circuit held that

waiver occurred only where the petitioner could “point to specific information” in the public

domain to prove the public release of a record “identical to that being withheld” by the

government.84 It remanded the case, noting that “[t]he Justice Department is prepared to release

excerpts [of the wiretapped recordings] quoted in newspaper articles or other publicly available

materials,” because such media coverage proved that the quoted recordings had been publicly

played at the trial.85

Tull is also consistent with a line of cases that holds that the release of the transcript of a

recorded conversation can satisfy FOIA even when the audio recording of the conversation is

what is requested.86 This line of cases is distinguishable from the instant case because they

involve audio recordings of conversations; by contrast, the video recordings played at Fields’s

preliminary hearing visually capture events as they transpired. Unlike the oral conversations

transcribed in Tull, the events visually depicted in the videos played at Fields’s preliminary

hearing cannot be reproduced in a written transcript.

d. Application to the Fields Preliminary Hearing

At Fields’s preliminary hearing, the Commonwealth’s Attorney entered the two videos

into evidence and played them in open court. The New York Times, the Washington Post, CNN,

the Associated Press, and Jason Kessler, among others, were in the courtroom gallery, observing

as the two videos were played. That evening, all five reported on the contents of the videos – the

83
Id. at 1279-80.
84
Id. at 1280.
85
Id. at 1282.
86
See, e.g., Nixon v. Warner Communications, 435 U.S. 589 (1978) (denying federal FOIA request for audio
recordings of White House conversations, even though they were played in open court, because public and
press had been given transcripts of the conversations); Fisher v. King, 232 F.3d 391 (4th Cir. 2000)
(denying prisoner’s VFOIA application for audio recording of 911 call made in his case, even though it
was played in open court at his trial, because he had been given a transcript of the call).

18
New York Times, the Washington Post, CNN, and the Associated Press in news articles, Kessler

in a video posted to his Twitter page and YouTube account.87

The public release of the videos at Fields’s preliminary hearing constitutes a waiver of

Respondents’ ability to withhold the information under the “criminal investigative file”

discretionary exemption, VFOIA § 2.2-3706 (A)(2)(a). That discretion has already been

exercised in favor of the release of the videos. To allow Respondents to withhold the videos

under VFOIA would be to permit a “selective disclosure” that would unfairly privilege those

individuals and media organizations present in court on December 14th. “[O]nce there is

disclosure, the information belongs to the general public.” Nat’l Archives and Records Admin. v.

Favish, 541 U.S. 157, 174 (2004).

Of course, the two videos properly belong in the Fields case file and should be publicly

accessible there, through the clerk of this court. But for the Commonwealth’s Attorney’s

unintelligible motion, which they claim is a motion “to withdraw all exhibits”, and the General

District Court’s granting of that motion without providing notice to the public, without

explaining its rationale, and without narrowly tailoring its closure of the record to preserve the

public’s statutory and First Amendment right of access, these videos would be publicly

accessible today, with or without VFOIA.

5. Intervention and Mandamus are Appropriate

Virginia citizens have the right to intervene in criminal prosecutions to assert their First

Amendment and statutory rights.88 The Fields case was certified to this court, making it the

appropriate venue for a motion to intervene. The Fields case was so certified without including

the two videos in the record, in violation of VA Code § 16.1-69.55(A)(2), which requires that

“all documents shall be certified to the clerk of the appropriate circuit court,” and in violation of
87
See Evans Aff. ¶¶ 45-48.
88
See, e.g., Daily Press, Inc. v. Commonwealth of Virginia, 285 Va. 447 (2013); Richmond Newspapers, Inc.
v. Commonwealth of Virginia, 222 Va. 574 (1981). See also Rule of Court 3:14.

19
the public’s First Amendment right of access. Because the Fields case record is statutorily and

constitutionally deficient, and the court responsible for the deficiency no longer has jurisdiction,

mandamus directed at the Commonwealth’s Attorney – the party who introduced the videos as

evidence, and who allegedly issued the motion “to withdraw all exhibits” that led to the statutory

and constitutional deficiencies – is the only available remedy to secure the public’s rights.

Mandamus is also appropriate under VFOIA, which states that “[a]ny person . . . denied

the rights and privileges conferred by this chapter may proceed to enforce such rights and

privileges by filing a petition for mandamus or injunction, supported by an affidavit showing

good cause.”89 Such petition can be brought, at petitoner’s discretion, “to the general district

court or circuit court of the county or city from which the public body has been elected.”90 Thus,

in both Evans’s case against the City and his case against the Commonwealth’s Attorney, this

Circuit Court is an appropriate venue for his mandamus petitions under VFOIA.

CONCLUSION

In order to protect the public’s statutory and First Amendment right of access, this court

should order the Commonwealth’s Attorney to return the two videos to the public record of the

Fields case. If this court does not issue such an order, it should order the City and the

Commonwealth’s Attorney to comply with their obligations under VFOIA by disclosing the two

videos to Evans, because Respondents have already exercised their discretion in favor of such

disclosure by playing the videos as evidence in open court.

Respectfully submitted,

William N. Evans, representing himself pro se

[personal information redacted]

89
VFOIA § 2.2-3713(A).
90
VFOIA § 2.2-3713(A)(1).

20
 Table of Authorities
Cases
American Tradition Institute v. University of Virginia, 287 Va. 330 (2014). ....................................... 13, 16
Cottone v. Reno, 193 F.3d 550 (D.C. Cir. 1999). ................................................................................. 13, 14
Daily Press, Inc. v. Commonwealth of Virginia, 285 Va. 447 (2013). ................................................ passim
Daily Press, Inc. v. Commonwealth of Virginia, 60 Va. App. 213 (2012). .............................................. 2, 3
Davis v. Department of Justice, 968 F.2d 1276 (D.C. Cir. 1992) ......................................................... 17, 18
Fenter v. Norfolk Airport Authority, 274 Va. 524 (2007). .......................................................................... 16
Fisher v. King, 232 F.3d 391 (4th Cir. 2000).............................................................................................. 18
Globe Newspaper Co. v. Commonwealth of Virginia, 264 Va. 622 (2002):................................................. 8
Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596 (1982). ............................. 8, 10
In re Times World Corp., 25 Va. App. 405 (1997). .......................................................................... 9, 11, 12
In re Washington Post, 807 F.2d 383 (4th Cir. 1986). ................................................................ 9, 10, 11, 12
Kamakana v. City & County of Honolulu, 447 F.3d 1172 (9th Cir. 2006). .................................................. 7
Kimberlin v. Department of Justice, 921 F.Supp. 833 (D.D.C. 1996). ....................................................... 15
Lawrence v. Jenkins, 258 Va. 598 (1999). .................................................................................................. 16
Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157 (2004). ..................................................... 16, 19
Natural Res. Def. Council v. U.S. Department of Defense, 442 F.Supp.2d 857 (C.D. Cal 2006) ........ 15, 16
Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976)................................................................................... 5
Nixon v. Warner Communications, 435 U.S. 589 (1978) ........................................................................... 18
Oregonian Publishing Co. v. Portland School District No. 1J, 952 P.2d 66 (Or. App. 1998). .................. 15
Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1 (1986). ...................................... 8, 10, 12
Richmond Newspapers v. Commonwealth of Virginia, 222 Va. 574 (1981).. .......................... 10, 11, 12, 19
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). .................................................................... 7
Shell Oil Co. v. IRS, 772 F. Supp. 202 (D. Del. 1991)................................................................................ 14
Shenandoah Publ’g House, Inc. v. Fanning, 235 Va. 253 (1988) ........................................................ 4, 5, 6
Snowden v. Virginia, 62 Va. App. 482 (2013). ............................................................................................. 5
State of N. D. ex rel. Olson v. Andrus, 581 F.2d 177 (8th Cir. 1978). ........................................................ 14
Tianti v. Rohrer, 91 Va. Cir. 111 (Fairfax 2015). ......................................................................................... 7
Tull v. Brown, 255 Va. 177 (1998). ...................................................................................................... 17, 18
Statutes
VA Code § 16.1-69.53 .................................................................................................................................. 5
VA Code § 16.1-69.55 ........................................................................................................................ 1, 5, 19
VA Code § 17.1-208. ............................................................................................................................ 4, 5, 6
VFOIA § 2.2-3700 ...................................................................................................................................... 13
VFOIA § 2.2-3703.1 ..................................................................................................................................... 7
VFOIA § 2.2-3706 (A)(2)(a). ....................................................................................................... 1, 6, 13, 19
VFOIA § 2.2-3713(A) ................................................................................................................................ 20
Other Authorities
1987-1988 Att’y Gen. Ann. Rep. at 255-57 (Nov. 13, 1987). ...................................................................... 6
Rule of Court 3:14 ...................................................................................................................................... 19