County ‘obscenity panel’ members can remain anonymous

VIRGINIA–The names of 12 Prince William County residents who served on an “obscenity panel” can remain secret under a mid-August ruling by a Manassas circuit court.

Judge Dixon Foster’s ruling permits the county to continue to form anonymous panels, allow them to meet in secret and decide whether videotapes and other materials are obscene, without public scrutiny or accountability. The panel’s findings have provided the basis for Commonwealth’s Attorney Paul Ebert to seek grand jury indictments against area video stores that carried the tapes.

The panel had been formed by assistant prosecutor John Notarianni after members of the Christian Coalition staged a protest at a Manassas video store in April. In June, the panel held a secret meeting to determine whether videotapes sold at local stores were obscene under a state law that requires obscenity to be determined under “contemporary community standards.”

The panel viewed six tapes and concluded that four violated the law.

In late June, reporter Eric Heisler of the Woodbridge-based Potomac News sent a letter to Notarianni requesting the names of panel members under the state Freedom of Information Act. Notarianni refused to disclose the names, saying that they were exempt under the investigatory records exemption. He did not respond to a second request made in mid-July. Later that month, the newspaper filed suit to compel release.

Foster held that the names could be withheld under the investigatory records exemption to the state Freedom of Information Law. Notarianni testified that he had used the panel merely in an advisory capacity — to help him determine whether the stores in question had violated the state anti-obscenity law. He argued that the investigation into the video stores is on-going and the names should remain secret because panel members would not serve if they could not be promised anonymity. He also argued that the panelists could be called as witnesses in the criminal trials against the video store owners.

Foster agreed, rejecting Potomac News attorney Craig Merritt’s argument that the panelists were “not witnesses to anything” and that “once the indictments were issued, it’s clear that the investigation is no longer on-going.”

The court also ruled that Notarianni did not willfully violate the open records law by failing to respond to the second request, and denied the Potomac News’ request that he be fined $1,000.

The newspaper is “seriously considering an appeal in this matter,” according to publisher Peter Yates. (Media General Co. v. Notarianni; Media Counsel; Craig Merritt, Richmond)