Nearly two years after the deadly Unite the Right rally, Virginia State Police have been spurred to release their operations plan by a lawsuit. However, the plaintiffs feel the redactions are over-broad.
Soon after the UTR rally, 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 Jacobsen a redacted copy of the city police plan, but state authorities fought to keep their plan under wraps.
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.
In May, the case returned to Charlottesville Circuit Court and Moore removed his stay, ordering VSP to again provide a redacted version of the plan. Against the petitioner’s wishes, 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.
It could be appropriate, Moore said, so that the length of redacted materials could not be revealed to the public by Jacobsen, and perhaps create a public safety risk.
Moore’s order was finalized on June 10, and a redacted copy of VSP’s operations plan was submitted to Jacobsen late that month.
However, in a filing last month, Jacobsen, by counsel, argued that the submitted plan violated FOIA guidelines and did not meet Moore’s order.
“By indiscriminately over-redacting, Respondents fail to highlight for Petitioner or the Court those portions of the Operations Plan, if any, they contend would in fact ‘constitute a risk to the safety or security of law-enforcement personnel or the general public’ if disclosed,” the filing reads. “And, by failing to point out which of their newfound exemptions they now claim apply to which portions of the Operations Plan, Respondents leave the Court (and Petitioner) to guess at which exemptions Respondents might be attempting to rely on for particular redactions.”
Additionally, the plaintiffs again took issue with redaction method, which whited out entire pages instead of the more common blacking out.
“Instead of utilizing the typical redaction practice of blacking out withheld portions, Respondents — for no stated or apparent reason — whited out sections and, in some cases, entire pages of the Operations Plan, making it unnecessarily difficult to discern where and to what extent material has been withheld,” the filing reads.
The response goes on to highlight a variety of issues with the submission, arguing that information already released via CPD, the Governor’s Task Force report and the Hunton & Williams report has also been redacted, going against Moore’s decision.
In its own response, the state argues that no portion of the plan was improperly redacted, in part because the court granted “wide latitude” for the redactions. Additionally, the response claims the state reviewed the publicly reviewed reports for accuracy.
“In numerous instances the Reports attributed purported facts as contained in the VSP Operational Plan that are not in the plan,” the response reads. “Actual references to the Plan that were disclosed in the two reports were disclosed in redacted form released by Respondents, as were other portions of the Plan.”
Following the May hearing, Deputy Attorney General Victoria Pearson — who is representing the VSP — said she did not take issue with the accuracy of the Hunton & Williams report.
The court has not ruled on either response, and a hearing has yet to be set.
Last year, hundreds of police officials descended on Charlottesville, fencing in the Downtown Mall and conducting searches at controlled entrances. In the aftermath of the first anniversary weekend, area residents criticized the police response, characterizing it as “overblown”.
Though police officials have been tight-lipped about how many officers to expect, CPD Chief RaShall Brackney said the approach to policing this year will be “a very nimble, very soft presence,” similar to what was done while the University of Virginia men’s basketball team won the NCAA Tournament in Minneapolis this past spring.
Officials will operate under a unified command, Brackney said, as they did in 2018.
VSP spokeswoman Corinne Geller said Friday that the city police department would again be the lead agency for security during the rally’s second anniversary and directed questions to CPD. Geller also said the number of VSP personnel working in Charlottesville would not be released for operational and tactical reasons.