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Attorneys on both sides of FOIA suit cry foul

By Ben Orcutt - borcutt@nvdaily.com

FRONT ROYAL -- Attorneys involved in an open records lawsuit filed against the director of the Warren County Department of Social Services and the agency's board chairman are each crying foul.

Linda B. Selover, a Front Royal attorney, filed a petition in General District Court on May 15, 2008, alleging that her rights under Virginia's Freedom of Information Act were violated by social services director, Ronald L. King, and its board chairwoman, Prudence B. Mathews.

Selover sought minutes of Department of Social Services board meetings, audio recordings, e-mails and memos "which may shed light on their investigation of abuse of vulnerable individuals," she has said.

In September, with Judge W. Dale Houff presiding, Selover's attorney, David Zachary Kaufman, of the Kaufman Law firm in Fairfax, and County Attorney Blair D. Mitchell, signed the terms of an agreement on what documents the agency would provide.

According to the agreement, public documents, records and e-mails generated between Sept. 1, 2006, and April 7, 2007, by King, Tammy Curl, Mathews, Julie Music, David Stasko, K. Adams and Jennifer Mitchell must be provided to Selover for inspection and copying, with the department allowed to charge Selover for providing the records.

As the case proceeded, Houff gave Kaufman until June 26 to submit his argument and Blair Mitchell until July 13 to respond, with Mitchell stating in his response that social services had not violated Selover's rights under the open records act. The judge also allowed Kaufman an opportunity to reply to Mitchell's response, which Kaufman did, stating that his client had met the burden of proof and that sanctions were in order.

However, on Aug. 4, Mitchell filed an objection to Kaufman's response, stating that social services "objects to the numerous false and misleading statements made in the Petitioner's Reply."

In his objection, Mitchell goes on to note what he believes are the most egregious errors in the plaintiff's response, saying that contrary to Kaufman's claim, Selover was provided with tape recordings of social services board meetings and minutes in 2007, in addition to records regarding the seven individuals, well before the Sept. 5, 2008, agreement.

Mitchell goes on to say that contrary to the plaintiff's assertions, King and Mathews, despite being served in the lawsuit, are not defendants. Regarding the assertion that neither King nor Mathews has complied with their open records obligations despite the lawsuit, Mitchell says "the Defendant has responded with document after document when Ms. Selover has bothered to identify the documents that she wanted."

Mitchell asks that the court "disregard the false, erroneous and misleading statements" by the plaintiff.

Kaufman counters in a motion that social services should have asked for the court's permission before filing its objections. Despite social services' complaints about errors and untruths, Kaufman says, "nowhere does it prove its contentions with evidence or citations to the record. If WCDSS' contentions were correct it would surely have proved its case. Since it did not, the Court should assume that it cannot."

To show Selover's consistency in her requests, Kaufman refers to a May 7, 2007, letter from Mitchell to Selover, in which Kaufman says Mitchell acknowledges Selover's requests, which Kaufman says, "became the basis" for much of the Sept. 5, 2008, agreement.

"In any case, Ms. Selover never received what she was entitled to," Kaufman says. "For counsel to assert now that Selover is mis-stating or being untruthful when she argues that she has substantially prevailed and that WCDSS utterly failed to comply with FOIA in all the ways that have been so extensively documented in Ms. Selover's previous filings and by WCDSS' own witnesses is absurd on its face."

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Bill Pierceall

I remember reading somewhere an old law school adage that said, "If you have facts on your side, stress the facts; if you have the law on your side, stress the law. But if you don't have either the facts or the law on your side, pound the table, scream and shout."

County Attorney Blair Mitchell's latest "objections" seem to prove this adage.


The proper thing for this judge to have done was, to reject both final arguments. As soon as the judge saw this cover letter for, yet again, another final stab at the process, the judge should have instructed the Clerk to return this paperwork to Mr. Mitchell without reading it. Since he didn't do this, then one must question the integrity of our system, considering our judges can't seem to follow proper procedures!

I can see where this is heading without a decision from this judge.

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