LeMond v. McElroy, 891299
| Decision Date | 20 April 1990 |
| Docket Number | No. 891299,891299 |
| Parties | , 17 Media L. Rep. 1749 Donald LeMOND v. Barbara H. McELROY. Record |
| Court | Virginia Supreme Court |
Guy W. Horsley, Jr., Asst. Atty. Gen. , for appellant.
Terence P. Ross (Gary M. Kramer, Gibson, Dunn & Crutcher, on brief), for appellee.
Virginia Press Ass'n and Virginia Ass'n of Broadcasters (Alexander Wellford; David C. Kohler; Christian, Barton, Epps, Brent & Chappell, Richmond, on brief), amicus curiae for appellee.
Present: All the Justices.
This is a mandamus proceeding filed in the trial court under the Virginia Freedom of Information Act, Code §§ 2.1-340.1 through -346.1 (the Act). The only record provided on appeal is a letter from petitioner to certain public officials including the Attorney General of Virginia, a response of the Attorney General, the petition for a writ of mandamus, the transcript of a brief hearing at which no evidence was presented, and the order of the trial court awarding mandamus.
From this sparse record, the following facts can be ascertained. In April 1986, one Cassandra Jones was detained erroneously at the Alexandria, Virginia, courthouse by the local sheriff. Subsequently, Jones sued the Sheriff, and the case was settled. Pursuant to the settlement, a sum of money was paid Jones from public funds on behalf of the Sheriff. The settlement agreement was not filed among the court papers.
By letter dated September 19, 1989, in anticipation of a forthcoming Alexandria sheriff's election, Barbara H. McElroy, an Alexandria resident, made a request under the Act to Donald LeMond, Director, Division of Risk Management, Department of General Services, Commonwealth of Virginia. McElroy asked for the opportunity to inspect and copy the following documents:
By letter dated September 21, 1989, the Attorney General responded to McElroy's request and stated that LeMond was the custodian of the documents sought. The Attorney General wrote, however, that the documents are exempt from the mandatory disclosure requirements of the Act pursuant to Code § 2.1-342(B)(6), and stated that the documents would not be released voluntarily.
The exemption in (B)(6) excludes from the Act's provisions the following documents, as pertinent to this case: "Memoranda, working papers and records compiled specifically for use in litigation...."
On October 19, 1989, McElroy filed the instant petition for a writ of mandamus against LeMond in the court below asking that an order be issued against LeMond compelling him to permit her "to inspect and copy those documents described in Petitioner's September 19, 1989 letter." Filed with the petition for mandamus was a notice for a hearing to be held six days later.
LeMond filed no responsive pleading, but counsel for both parties appeared for the hearing on October 25, LeMond being represented by an assistant Attorney General. At the beginning of the hearing, McElroy's attorney stated that his client was "seeking to determine the amount of taxpayers' money used in that settlement of that lawsuit." Following factual representations and argument by counsel, the trial court ruled from the bench and granted the petition. The order appealed from was entered on that day and directed LeMond to permit McElroy "to inspect and copy all records and documents requested in her letter of September 19, 1989 that are in his custody within three days from the date of this order." We awarded LeMond this appeal on October 27 and granted his motion to stay execution of the writ of mandamus pending appeal.
LeMond's assignment of error raises the question whether "the settlement agreement" and "implementing documents" are exempt pursuant to (B)(6) from the mandatory disclosure provision of the Act. But the parties do not agree completely on just what documents are in issue.
Unfortunately, neither party, nor the trial court, sought to have the documents produced for the court's in camera inspection in order to determine the precise nature of the records. On brief, the Attorney General states that LeMond is the custodian of the following records that pertain to McElroy's request:
"(1) a copy of the settlement agreement that resulted in the dismissal of the case styled Cassandra Jones v. James Dunning, Sheriff, (Case No. 870385-A), in the United States District Court for the Eastern District of Virginia, Alexandria Division; (2) a payment request made by LeMond's Division for the final settlement check to be drawn, showing the amount of the check and to whom the check is to be made payable; and (3) a computer sheet showing the amount paid as a result of the Cassandra Jones settlement."
At the bar of this Court, McElroy's counsel was asked whether the focus of our decision should be confined to the foregoing items. Counsel responded that the trial court's order, incorporating by reference the broad and limitless language of McElroy's letter request, should be affirmed. Counsel said, however, that McElroy "would rely on the Attorney General to be forthright in determining what documents met that order." Consequently, we apparently are confronted with basing our decision on a "settlement agreement," a payment request for a settlement check to be drawn, and a computer sheet showing the amount paid in the settlement.
The Attorney General argues that the plain language of the exemption excepts the documents in issue. Contending that a settlement agreement is prepared and entered into by litigants for a single purpose, to bring an end to pending litigation, the Attorney General says there is "quite simply, no nonlitigation purpose for preparing and executing a settlement agreement." The Attorney General argues that the exception for litigation records in (B)(6) "reflects the policy judgment of the General Assembly that public litigants should participate in the adversarial process on a...
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