Virginia State Police again have 30 days to release a redacted copy of its Aug. 12, 2017, operational plan to a freelance journalist after a Charlottesville judge decided some of the information would not be a risk to the police or the public.
Reporters Natalie Jacobsen and Jackson Landers — represented pro bono by attorneys from the Reporters Committee for Freedom of the Press — sued the city of Charlottesville, state police and the Office of the Secretary of Public Safety and Homeland Security in October 2017 for access to city and state police plans from the Unite the Right rally.
The police had been criticized for their response to the white supremacist rally, which ended with the deaths of counter-protester Heather Heyer and two VSP officers.
In the complaint, Jacobsen and Landers said they were told their Freedom of Information Act requests were denied because the records contained tactical plans and could endanger law enforcement personnel if they were made public.
In March 2018, the city agreed to give Landers and Jacobsen a redacted copy of the city police plan, but state authorities fought to keep their plan under wraps in a hearing to dismiss the case that month.
At an April 2018 hearing, Judge Richard E. Moore ordered VSP to provide a redacted copy of the plan within 30 days, but he issued a stay on the order. VSP appealed the decision to the Supreme Court of Virginia a few days prior to the order’s issuance.
Because the order was not final when the appeal was filed, the Supreme Court of Virginia declined to hear the state’s case.
On Wednesday, Moore removed his stay, ordering VSP to again provide a redacted version of the plan, but some confusion arose regarding the redaction methodology.
Moore said that redaction via deletion of material believed by the VSP to be exempt could be done, rather than the more common black-out line redaction. This could be appropriate, Moore said, so that the length of redacted materials could not be revealed to the public by Jacobsen, and thus perhaps create a public safety risk.
Caitlin Vogus, an attorney for Jacobsen, disagreed with this plan and argued that redaction by deletion could make it more difficult for her client to challenge the redactions.
As a compromise, Moore suggested allowing Jacobsen a blacked-out redacted copy so long as she not release it publicly. When Vogus objected, pointing to Jacobsen’s role as a journalist and right as a member of the public, Moore suggested not giving the plaintiff a copy of the report.
“I don’t want it released prematurely,” Moore said. “I don’t want her saying they blacked out 20 pages, which could cause problems.”
Deputy Attorney General Victoria Pearson again argued that the report should not be released before VSP’s appeal can be heard and claimed that releasing even a redacted report beforehand would be self-defeating.
“We do agree that you cannot put a genie back into a bottle,” she said. “To put [the report] out and try to put it back defeats the purpose.”
As Moore ruled in April 2018, much of the information has already been released publicly, Vogus said, and VSP could release what it deems to be “innocuous.”
Some of VSP’s plan was in a December 2017 report from former federal prosecutor Tim Heaphy, whom the city hired to dissect the Unite the Right rally.
In the end, Moore ordered the report released, but he will allow redaction by deletion.
A copy of the redacted report will be given to both the court and Jacobsen within 30 days. More hearings over the legality of redacted materials are expected.
Following the hearing, Jacobsen said VSP’s refusal to release portions of the plan because they had purportedly been leaked in the Heaphy report set a “dangerous precedent.” If discrepancies exist then the public had a right to know, she said.
Nevertheless, Jacobsen said Wednesday’s hearing was a victory in the fight for access to public information.
“It’s a right for the public to see it, and I hope they will comply with the 30-day ruling and that we see it,” she said.