A Northern Virginia Daily special anniversary section

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Daily puts its money where its mouth is to defend the free press, open government

From using the Freedom of Information Act to taking issues to court, newspaper works hard for the people

By Carolyn Keister Baker
Daily Staff Writer

The Northern Virginia Daily has a proud record of defending freedom of the press.

The Daily is well known by its readers for quality, having received 41 awards for excellence in writing, photography and newspaper design during the Virginia Press Association's annual editorial conference this year. The newspaper's achievement of receiving the association's prestigious Sweepstakes Award for the seventh year in a row and for 16 of the last 19 years was well publicized.

But less known is the Daily's championing of Virginia's Freedom of Information Act.

"It's easy and cheap to write stories and editorials about the public's right to attend government meetings and have access to public documents, but there are also times when you have to put your money where your mouth is, when publicity should be supplemented by legal action," says Daily Editor John F. Horan Jr.

"We've never gone looking for confrontation, but we've also never shied away from it if we thought the law was on our side and the government entity was blatantly wrong," he says.

"[The Daily] stands on principle," says Winchester attorney David Griffin, who represents the newspaper in press access issues. "Not many [parties] these days stand on principle. Really, no one takes this on like this newspaper."

The state's Freedom of Information Act was enacted July 1, 1968. It ensures public access to meetings and records of state and local government, according to the Web site of the Virginia Coalition of Open Government, of which the Daily was a founding member.

The law allows for certain exemptions, but the spirit of the law calls for openness. Griffin remembers well going to the courtroom as often as monthly on behalf of the Daily to support Virginia's Freedom of Information Act. Even when the Daily had no plans to send a reporter for a news story, Griffin represented the newspaper and the interests of the public — arguing in favor of keeping a court proceeding open or records available for inspection, for example.

The law "is vital to reporters covering news in the Northern Shenandoah Valley," says Managing Editor Bob Wooten.

"Daily reporters covering local government regularly attend meetings of county boards of supervisors, school boards, town councils and other bodies. Under the law, the business of such public agencies must be conducted in open session except for narrowly defined exemptions," he says. "When necessary, reporters object to matters being discussed in closed session, putting the public body on notice that its decision could face a legal challenge."

More frequently, reporters use the open records provision, requiring public documents to be made available to the public, Wooten says. Reporters use this provision to research stories.

The newspaper tries to avoid litigation, for example writing letters asking that violations be corrected without going to court. Nevertheless, the newspaper has taken on numerous Freedom of Information cases in the Northern Shenandoah Valley. While not winning them all, some of these cases have set precedents and were major victories for public access, Griffin says.

One of the most important cases involved legal action taken by Shenandoah Publishing House against the Shenandoah County Board of Supervisors, Griffin says.

In 1993, Shenandoah Publishing House Inc., publisher of the Daily, sued the board and two committee members after a Daily reporter was prevented from attending a Finance Committee meeting held to discuss possible tax increases and cuts to the budget in April of that year.

The Daily claimed that the meeting violated the state's Freedom of Information Act because the reporter was barred from the meeting.

The county argued that the committee meeting did not meet the act's definition of a meeting because the committee had only two members. It contended that three members of the board must be involved before a meeting was required to be open to the public.

Judge Perry W. Sarver ruled in favor of the newspaper, saying the intent of the act is for such meetings to be open, and he issued a permanent injunction barring the board from closing meetings of its two-member committees. The county's appeal was denied, and Sarver's ruling was upheld by the Virginia Supreme Court.

A supervisor convicted of violating the injunction could have faced up to 12 months in jail.

"It is the only injunction of which I am aware that was issued against a government body," Griffin says. "That's pretty impressive. That is a pretty severe action for the court to take."

In 1988, the Daily won another important victory when the Virginia Supreme Court overturned a Circuit Court judge's ruling and said records cannot be sealed and proceedings closed in civil suits.

The ruling extended to the civil domain rules regarding openness that are applied to criminal proceedings.

In that case, Winchester Circuit Court Judge Henry H. Whiting had sealed all judicial records in a wrongful death suit brought by Virginia K. , executrix of the estate of her husband, Walter A. Fanning, against several physicians, medical corporations and Winchester Memorial Hospital, now Winchester Medical Center.

Fanning filed the medical malpractice lawsuit as a result of her husband being dropped on the hospital floor prior to surgery in 1981.

The judge sealed the records at the request of all litigants, ruling that any common law right of access the public had " should yield in this instance to the desire of all parties not to publicize the pleadings of an essentially private dispute between non-public figures with the obvious risks of emotional damage to both parties and professional and financial harm to the defendants."

But on an appeal by Shenandoah Publishing House, the Virginia Supreme Court struck down that decision, saying the judge's ruling conflicted with state law, which says the "records and papers of every court shall be open to inspection by any person."

However, the Supreme Court said the judge correctly barred public access to pretrial documents such as depositions.

Stories and columns were written about the case in newspapers throughout Virginia, hailing the decision as a victory for press access.

"It's a step in the right direction for the Virginia Supreme Court to say there is a public interest in these cases that can't be usurped," Jane Kirtley, executive director of the Washington-based Reporters Committee for Freedom of the Press, said after the ruling. "We are delighted that the Virginia Supreme Court has upheld the right of the press and the public to have access to judicial records," Horan said at the time. "The Circuit Court ruling sealing the records in this case seemed overly broad and, by extension, could have resulted in virtually all civil court cases being viewed as essentially private matters, beyond the view of the public."

* Contact Carolyn Baker at cbaker@nvdaily.com

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