Winchester Commonwealth’s Attorney Abrams Says FOIA Does Not Apply to Campaign Work During Business Hours

We have a very interesting race going on in Winchester. It seems the acting Commonwealth Attorney claims that work done at the Commonwealth Attorney’s Office on his campaign by office workers during the working day is not subject to FOIA requests.

A better question is why are the employees of the Commonwealth’s Attorney’s office working on a campaign when they are supposed to be at work for the people?

The letter below is a response to Marc Abrams refusal to hand over the documents requested in the FOIA.

You just can’t make this stuff up! It’s definitely time to look at strengthening Virginia’s FOIA laws.

Mr. Marc Abrams

Acting Commonwealth’s Attorney and Custodian of Records

Office of the Winchester Commonwealth’s Attorney

24 Rouss Avenue, Suite 200

Winchester, VA 22601

Re:       Followup to Your September 29, 2015 Freedom of Information Act Response

Dear Mr. Abrams:

We received your response to our second Virginia Freedom of Information Act (“FOIA”) request on behalf of Darryl Major, a citizen of the Commonwealth of Virginia. You will recall that on September 23, 2015, inter alia, we asked for records in your office relating to time spent by your staff on your candidacy for election as Commonwealth’s Attorney including a certain appeal to the 10^th District Republican Committee relating to your campaign.

In your response of September 29, 2015, you declined to provide many of the records requested, stating that “Any discussion pertaining to political matters would not constitute a public record” and thus is not “required to be disclosed pursuant to the Virginia Freedom of Information Act.” We make the following follow-up requests on Mr. Major’s behalf.

From your refusal to provide the requested records, it appears that you are taking the position that even if your staff had spent substantial time during working hours on your political campaign, you would not be required to disclose records confirming that work because they are not “public records” within the definition of the Virginia FOIA. Based on this same rationale, you also refuse to disclose campaign emails sent from private accounts during work hours to advance your political campaign. And, you also refuse to disclose certain “personal pictures of Marc Abrams” stored on office computers, which were attached to two emails, both dated July 14, 2015, which emails were provided in response to our initial request, also dated July 14, 2015.   (We certainly cannot understand why you originally believed that the two emails you provided was responsive to our request, but then took the position that the three photographs attached to those emails were personal, and not responsive to our request.)

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However, we know that several, if not all, of the employees of the Commonwealth Attorney’s office for whom you are responsible, have been involved in your campaign.

• Several of the employees of the Commonwealth Attorney’s attended the over three-hour civil hearing in Winchester Circuit Court on July 17, 2015, in which some members of the Winchester Republican Committee unsuccessfully attempted to stop the primary which was held on July 18. And, it must be remembered that this was a hearing in which none of these employees had any official role — attending only to observe a case apparently brought by your political allies.
• In addition, several of the employees of the Commonwealth Attorney’s office attended two of your public campaign events — one where you announced the launching of your campaign for the Republican nomination (on June 17, 2015), and when that proved unsuccessful, a later one where you announced the launching of your campaign as an independent candidate (on July 31, 2015).^[1]

This conduct occurred during work hours when your office staff was being paid with taxpayer funds to do the public’s business. Although you provided no actual records relating to employee leave, you created a summary sheet purporting to evidence leave taken by your staff members on two days only: for you and two staff members on the date of the July 17 hearing in Winchester Circuit Court involving the Republican nomination, and for you and nine staff members on the date of your July 31 campaign event. Of course, from this summary sheet, it cannot be determined whether leave was requested at the time, or if it was requested only after your office received Mr. Major’s request for records.

In view of the foregoing, we have two requests.

First, regardless of your view of the statutory requirements for compelled disclosure of records, the people of Winchester have a right to know whether you have been faithful to your responsibility as Acting Commonwealth’s Attorney to prevent your staff from spending office time on your campaign, misusing tax dollars for that purpose. Therefore, we would again ask that you disclose the actual payroll records reflecting the taking of leave by your employees on the dates previously requested, rather than summary sheets, as well as all other instances where your employees have been involved with your campaign, revealing whether they were on leave or on official time.

Second, section 18.2-112.1(b) of the Code of Virginia provides:

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Any full-time officer, agent, or employee … of any City … who, without lawful authorization, uses or permits the use of public assets for private or personal purposes unrelated the duties and office of the accused or any other legitimate government interest when the value of such use exceeds $1,000 in any 12-month period, is guilty of a Class 4 felony.

Accordingly, based on the incidents cited above, and your refusal to provide the actual payroll records, and your refusal to provide other emails and photographs and other records developed by or emailed by your staff, we would respectfully request that you forthwith either refer this matter to another Commonwealth’s Attorney for investigation, or apply to the Court for the appointment of a Special Prosecutor, or refer the matter to the “Bureau of Criminal

Investigation of the Department of State Police.” See Virginia Code § 19.2-155 and § 52-8.1.

Lastly, our September 23 FOIA request asked a question about a June 19, 2015 email to you from a Frederick County Sheriffs Deputy which included a veiled threat against one of your political opponents. In response, you said your office has no records about investigating that apparent threat, thus implying you have done nothing with respect to this written threat.

Please confirm that you took no official action whatsoever in response to this apparent threat.

Sincerely yours,

William J. Olson

cc:         Mr. Darryl Major

[1] Additionally on October 16, 2015, several of the employees of the Commonwealth Attorney’s office for whom you are responsible, attended a press conference held by Howard Mannheimer endorsing your candidacy.