Reporters Committee friend-of-the-court brief prompts opposition from lawyer trying to keep prosecutor’s records secret.

A friend-of-the-court brief submitted by the Reporters Committee for Freedom of the Press in a Freedom of Information case before the Virginia Supreme Court has prompted one of the litigants to oppose the Reporters Committee brief, arguing that the case “does not involve the interests of the press.”

The case at issue was filed by criminal defense attorney James Connell, who wanted to obtain the police report pertaining to a car-jacking allegedly committed by one of his clients. Prosecutor Andrew Kersey refused to provide the police report voluntarily. Connell then filed a Freedom of Information Act request with the prosecutor’s office to obtain the report. The trial court held that the prosecutor’s office was not a “public body” within the meaning of the Virginia Freedom of Information Act and therefore not required to divulge the information.

Connell appealed the decision in James G. Connell III v. Andrew Kersey to the Virginia Supreme Court.

The Reporters Committee, joined by the Virginia Coalition for Open Government, submitted an amicus curiae brief to the court, arguing that it would be harmful to the public if prosecutors were excluded from the definition of “public body” subject to the act. The brief noted that prosecutors should be considered “public bodies” under the Freedom of Information Act, according to prior case law. The brief also cited examples of cases where the conduct of prosecutors has been called into question, such as racial profiling cases, to demonstrate that the public has an interest in monitoring how prosecutors do their job. In addition, the brief argued, the public has an interest in knowing how the prosecutors office spends the tax dollars apportioned to it, which can be discovered only if the office is subject to the Act.

Jack Gould, the attorney for prosecutor Andrew Kersey, opposed the Reporters Committee’s motion to file the amicus brief. Gould argued that the case does not involve the interests of the press.

“It is astonishing that a public official would even suggest that the media has no interest in this case,” said Reporters Committee Executive Director Lucy Dalglish. “Motions to prevent media organizations from filing amicus briefs on behalf of the press and public are exceedingly rare because lawyers usually recognize that the media has an important interest in freedom of information issues.”

“I can’t imagine a case ever headed to the Virginia Supreme Court that could possibly raise greater freedom of information issues, whether involving Virginia’s news media or the general public,” said Forrest “Frosty” Landon, executive director of the Virginia Coalition for Open Government.

“Without access to public records paid for by taxpayers and in the hands of more than 500 elected prosecutors, sheriffs, treasurers, revenue commissioners and clerks of courts in every county and city in Virginia, individual citizens and news media can’t possibly monitor activities of local government,” Landon said.

The Reporters Committee is a voluntary, unincorporated association of reporters and editors that works to defend the First Amendment rights and freedom of information interests of the news media. The Reporters Committee has provided representation, guidance and research in First Amendment and Freedom of Information Act litigation since 1970.

The Reporters Committee regularly files amicus curiae briefs in cases involving First Amendment or Freedom of Information cases to advise the court of how a ruling would impact the interests of the media. Even if a particular case might not involve the media as a party to the suit, the ruling would create precedent that would affect a journalist in the future. In this case, a ruling that excluded prosecutors from the definition of “public body” would prevent journalists from obtaining information from prosecutors’ offices in the future.

The amicus curiae brief in Connell v. Kersey can be found on the Reporters Committee’s web site at: https://www.rcfp.org/news/documents/connell.html.