On Tuesday, the Reporters Committee for Freedom of the Press opposed the efforts of the City of Charlottesville and two Virginia agencies to dismiss a lawsuit seeking police safety and operations plans for the “Unite the Right” rally that took place in Charlottesville, Va. on Aug. 12.
The Reporters Committee is representing freelance journalists Natalie Jacobsen and Jackson Landers in the lawsuit. The journalists sued the City of Charlottesville, the Department of State Police, and the Office of the Secretary of Public Safety and Homeland Security for access to the plans after the agencies denied requests for them under the Virginia Freedom of Information Act (FOIA) in their entirety. The case is currently before the Charlottesville Circuit Court.
“The public – and in particular the people of Charlottesville – has a right to know more about the plans that were put in place to keep the community safe during this rally,” said Caitlin Vogus, staff attorney for the Reporters Committee for Freedom of the Press. “The safety and operations plans are an important part of producing accurate reporting for the public about law enforcement’s response to this event.”
Jacobsen and Landers – who have reported on the rally for news outlets such as C-VILLE Weekly, The Daily Beast, and Rewire – are seeking access to the safety plans to find out what precautions law enforcement took before the rally and whether police were given a stand-down order or otherwise directed to not respond to acts of violence or make arrests. The violence that occurred at the rally led to the death of 32-year-old Heather Heyer and the injuries of 19 others. Two Virginia state troopers assigned to monitor the rally, Lt. H. Jay Cullen and Trooper Berke M.M. Bates, were also killed in a helicopter crash that day.
In refusing to release the plans, the Virginia agencies and City of Charlottesville cited an exemption under the state’s FOIA that applies to tactical plans of law enforcement agencies that if disclosed, “would jeopardize the safety or security of law enforcement personnel or the general public.” They also claim that they can withhold entire records, even if only parts of them contain information that is exempt under this exclusion.
The Reporters Committee’s opposition filing argues that the plans are of significant public interest and releasing them would not endanger law enforcement personnel or the public because information about the plans has already been disclosed in two government reports. The filing also explains that the plans are unlikely to be reused because different safety plans will be used for future rallies based on the unique circumstances of those events, and the two government reports made extensive recommendations for improving law enforcement’s response to future rallies.
According to the filing, “[G]iven the tragic events of August 12, 2017 and the ineffectiveness of the operation plans that were used to prevent those events from occurring, the City and Commonwealth are publicly considering recommended changes to permitting procedures and operation plans for future rallies, based on the lessons learned from the ‘Unite the Right’ rally… [I]n light of the extensive recommendations made in both the Governor’s Task Force Report and Heaphy Report, it is expected that the City’s and Commonwealth’s operation plans for future events will be significantly changed. Thus, since the plans used for the ‘Unite the Right’ rally will not be re-used in the future, there is no reasonable likelihood of risk to safety or security if the requested records are released.”
The filing also explains that even if part of the plans do qualify for exemptions from the state FOIA, the agencies still have a duty to redact the information that qualifies for exclusion and release the remainder of the records to the public.
The full opposition filing is available here.