Bacon's Rebellion

Democracy Thrives in Sunlight

Unequivocal Support for Free Speech… but Not Transparency

—

by

James A. Bacon
in ,

by Walter SmithTo the tune of “Unforgettable”…Unequivocal you’re not at allUnequivocal nowhere this fallLike an empty phrase that runs from meHow your illusion does things to meNever before has something been lessUnequivocal in every way

The University of Virginia formed the Free Expression and Free Inquiry Committee in February 2021. In May the Board of Visitors “unequivocally” endorsed the work of the Committee. Personally, I think the statement is a disgrace to Jefferson’s free speech legacy – I was hoping for more than the Chicago Principles and got a lukewarm, turgid, academic, PC jargon, kinda sorta saying UVA believes in free speech..

Does UVa really believe in free speech? We have seen that F— UVA is vigorously protected on the Lawn, but what about in the classrooms and on the Grounds? Are students and professors free to express their beliefs without fear of recrimination? Anecdotally, I don’t think they are. I have heard stories. and I have seen true harassment and shaming and threats for the “crime” of not agreeing with current woke ideology du jour.

Let’s be clear about President Jim Ryan’s Committee. I have studied academia, and Ryan particularly, to know that any committee is stacked to come to the desired conclusion. Personnel is policy. It was so on the Racial Equity Task Force. It was so on this Committee, and it will be so on the Naming and Memorials Committee. Additionally, these committees control the information they “officially” receive (publications cited, witnesses called, etc) so that nothing distracts from the pre-ordained conclusion.

The Free Expression Committee held a “listening session” May 3, 2021. It was not well advertised, nor was much notice given. Nonetheless, I requested and received an audio copy of the testimony. I noticed reference to what I understood to be a Dropbox-type folder. Surmising that the folder contained public input submitted to the Committee, I requested the documents. (Actually, I requested all documents concerning the Committee and when I was told it would cost mucho dinero, I amended my request to just that receptacle.)

UVA’s FOIA officer eventually produced 213 pages of publicly available documents, but withheld the documents I heard referenced (and who knows what else) as “working papers” or as “exempt scholastic information.” As a neophyte (I was a corporate lawyer and avoiding litigation was a big part of my job), I filed in Henrico General District Court to compel production of the withheld documents. UVa responded, and we had an impromptu trial on July 30, where the Judge agreed with UVa.

I am now trying to get this issue resolved in the Circuit Court. The UVa lawyer has been kind enough to tell me where I have failed to comply with the basic procedural rules, and one day soon I may even get the papers properly filed to begin the lawsuit.

“Working papers” are defined as “records prepared by or for a public official (in this case, Ryan) for his personal or deliberative use.” I don’t see how documents submitted to the Free Expression Committee were prepared for Ryan’s “deliberative” use. They were prepared for the Committee’s use. Documents from the Committee to Ryan for the purpose of making decisions are “working papers,” but not these. If so, then every document at every Committee can be shrouded by claiming it was generated to help him make a decision, or even more absurdly by just forwarding the documents to him, thereby clothing them with his deliberative privilege. Similarly, the exempt student information is exempt only if it could lead to the identification of the student. This problem is easily cured by limited redaction.

So, one day, I may get to the Circuit Court on this issue. But Ryan can choose to release “working papers.” He unequivocally believes in free expression and free inquiry, as does the BOV. Why can’t an interested alumnus see these documents? Are they THAT bad?

Walter Smith is an attorney living in Henrico County.

Share this article

ADVERTISEMENT

(comments below)

ADVERTISEMENT

(comments below)

Comments

15 responses to “Unequivocal Support for Free Speech… but Not Transparency”

  1. WayneS Avatar
    WayneS

    That’s some pretty good song parody, sir.

    1. walter smith Avatar
      walter smith

      Thank you, but credit belongs to the lyricist, the phrasing of Nat King Cole and the happy coincidence that Unforgettable and Unequivocal both have 5 syllables…

  2. Steve Gillispie Avatar
    Steve Gillispie

    Keep trying and crowd-source if you need funding. There are a lot of alumni who support you adamantly.

    The wokesters (Liberals and virtually all University and College personnel) are a national minority but currently a minority controlling academia, the courts, the press, the media, and much of our access to information.

    They can maintain their strong-arm bullying cram-down of their ideology only with censorship, cancelling, harassment, on-line bullying, secrecy, corrupt judges, and a corrupt FBI. So far that has been successful for them; but there is hope that some awareness is creeping through the ranks of the “good Liberals”. I.e. those living in the fantasy that today’s activists are like them in their remembered glory of bringing civil rights to blacks and exposing a war based on the lies of Democrat Presidents.

    Anyone notice how it’s always been the Democrats who were responsible for everything today’s Liberals say they are against while continuing to repeat their history.

  3. StarboardLift Avatar
    StarboardLift

    The broad “working papers” exemption was fluffed up by Teresa Sullivan to avoid showing her hand after 2012.

  4. William O'Keefe Avatar
    William O’Keefe

    You have to shake your head in bewilderment that UVA needed a Free Expression Committee. Couldn’t the senior management simply read what Jefferson had to say and the 1st Amendment?

    1. Rob Austin Avatar
      Rob Austin

      Ah, but no, good sir. Mr. Jefferson is the bete noir in the eyes of the Ryan/Magill commissariat. If they could, they would expunge every vestige of his influence on UVa, Their dream is to bulldoze the Rotunda and turn the Lawn into an organic vegetable co-op. Many, many people have petitioned Ryan and challenged him to formally accept the Chicago Principles. He refuses. Instead, like the arch-progressive bureaucrat he is, he forms a committee. He and Magill give them their marching orders and they bow and scrape and come up with “working papers” they guard with all the might the lunatic left of the UVa Law School can provide. What is it he’s hiding? Just look at his hires and you’ll get a clue.

      1. William O'Keefe Avatar
        William O’Keefe

        As a wag once said, “A committee is a group of the unprepared, appointed by the unwilling to do the unnecessary.”

  5. tmtfairfax Avatar
    tmtfairfax

    Any external communication from the public is, well, public information under the law. Fairfax County clearly advises the public that any communications made in the normal course of business is public information subject to disclosure.

  6. Fred Woerhle Avatar
    Fred Woerhle

    If documents were submitted to the committee by outsiders, how can the university claim they are exempt under “deliberative process privilege”? That privilege doesn’t cover communications with outsiders, even purported experts, it only covers internal communications among policymakers. Here’s a court decision taking that position under federal law, which I assume defines privileges similarly to state law: https://www.leagle.com/decision/infdco20160211b28

    1. emjak Avatar
      emjak

      Rather than rely on a federal court decision about a federal statute as persuasive authority, it would be better to see whether there are any Virginia court decisions interpreting the Virginia FOIA that discuss the issue.

      1. Fred Woerhle Avatar
        Fred Woerhle

        If any such state court decision exists (which it very well might). But most Virginia court decisions are unpublished and hard to find. There often is NO published Virginia court decision interpreting a relatively insignificant state law, or less significant aspects of even major laws. So lawyers have to look to how federal courts or courts in other states interpret similar laws. Sometimes, the Virginia benchbook for judges will opine on the meaning of a law, even when there’s no published court ruling on point.

        1. emjak Avatar
          emjak

          Take a look at
          Virginia Freedom of Information Advisory Council at http://foiacouncil.dls.virginia.gov/foiacouncil.htm
          and at Virginia FOIA Opinion Archive at
          https://www.opengovva.org/foi-opinions

          1. walter smith Avatar
            walter smith

            There is nothing really on point. The UVA lawyer gave the Judge some advisory opinions, and the Judge said none were really applicable. I don’t fault the Judge – he understood the presumption I was entitled to the documents, but bought the UVA contention that this was a SPECIAL, SUPER SECRET, DOUBLE SECRET PROBATION committee. UVA attached affidavits from Ryan and Magill saying so. We’ll see what happens in a Court of Record. But I do have to say, for $64 and the ease of filing, the General District Court route has been productive (I withdrew one suit (“nonsuit”) and had this one. At least you get an answer and why.

          2. Fred Woerhle Avatar
            Fred Woerhle

            It looks like the Supreme Court has ruled that deliberative process privilege doesn’t apply to communications unless they are internal among policymakers. See Department of Interior v. Klamath Water Users Protective Assn., 532 U.S. 1 (2001).

            Admittedly, that’s under federal law, rather than state law.

  7. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    Invoking “executive privilege” and setting a high cost for turning over easily produced (copied) documents are common ways that agencies use to discourage FOIA requests.

Leave a Reply

Read More