No.

10-2477 __________________ IN THE SUPREME COURT OF VIRGINIA __________________

GEORGE H. CHRISTIAN Appellant. v. STATE CORPORATION COMMISSION, et al. Appellees. __________________ On Petition for Appeal from the November 5, 2010 Final Order of the State Corporation Commission, Case No. CLK-2009-00013 __________________

OPE I G BRIEF OF APPELLA T __________________

George H. Christian 1317 Avonlea Court Chesapeake VA 23322 T (757) 652-5219 F (845) 698-3312 george.christian@yahoo.com Appellant, Pro Se

TABLE OF CONTENTS TABLE OF CITATIONS.... v I. II. III. IV. V. NATURE OF THE CASE AND MATERIAL PROCEEDINGS....................1 ASSIGNMENTS OF ERROR.......2 QUESTIONS PRESENTED......4 STATEMENT OF FACTS.6 PRINCIPLES OF LAW, ARGUMENT AND AUTHORITIES....11 A. B. Standard of Review.............................................................................14 Review Pursuant to Good Cause Shown and Ends of Justice Provisions Pursuant to Rule 5A:18.....................................................15 The SCC is a Public Body and therefore must comply with all of the FOIAs provisions (Errors 2, 3, 4, 5)....................................16 The SCC is a public body because it is an organization supported wholly or principally by public funds (Errors 2, 3, 4, 5)....................19 Christie, Dimitri, and Peck are responsible or managing employees of a public body, and thus bound by the requirements of Code 2.2-3704 (Errors 2, 3, 4, 5).................................................20 The Records Were Public Records (Errors 2, 3, 4, 5).........................20 All SCC Records Are Not Exempt(Errors 2, 3, 4, 5)..........................20 Enforcement Mechanism Exists (Errors 2, 5).....................................22 The SCC Erred When It Restyled the Case. (Errors 1, 2, 5, 13).........24 i

C.

D.

E.

F. G. H. I.

J.

The Commission erred when dismissed Christians declaratory judgment action (Errors 2, 3, 4, 5, 6)..................................................26 1. Declaratory Judgment Was Proper and Should Have Been Granted......................................................27 The Petition Is Not Moot29 Respondents Conduct Is Capable of Repetition Yet Evading Review..................................................................31

2. 3.

K.

The Commission erred when it denied Christians request for temporary and permanent injunctive relief. (Errors 2, 3, 4, 7, 8)...31 1. Injunctive Relief Was Proper and Should Have Been Granted.....................................................................................32 The Petition Is Not Moot..........................................................32 Respondents Conduct Is Capable of Repetition Yet Evading Review.32

2. 3.

L.

The SCC erred when it found the Clerks Office timely provided the requested information to Christian. (Error 2, 5, 14)......................33 1. The May 22, 2010 Letter Was Not A Response As Defined Under FOIA ...............................................................33 2. The Partial Information Finally Provided Was Not Timely..............................................................................35 3. The Clerks Office did not provide the records, the Clerk Did..................................................................................36

M.

The SCC Erred When it Denied Christians Motion to Correct Final Order Nunc Pro Tunc. (Errors 2, 5, 9, 15, 16)..........................36

ii

1.

The SCC Should Have Corrected Its Order To Reflect The Petitioner Sought Declaratory Relief Pursuant to the Virginia Declaratory Relief Act and Commission Rule 5-20-100-C, Not the FOIA.......................................................37 The SCC Should Have Corrected Its Order Where It Stated that on May 21, 2010 Christian filed a Motion to Expedite Disposition in which he requested, among other things, that the SCC grant an expedited hearing for a temporary injunction.................................................................38 The SCC Should Have Corrected Its Order Where It Stated that Clerks Office Provided a Timely Response.................39 (a) The information provided was not a timely response...........................................................40 The Clerks Office did not provide the records, the Clerk Did..................................................................42

2.

3.

(b)

N.

The SCC erred when it did not rule on or award Christian his costs as prescribed by the FOIA. (Errors 2, 5, 11, 12)..................42 1. Christian was entitled to a ruling on his request for attorneys fees, costs, and other and further relief....................44 Christian was entitled to a ruling on whether penalties should be assessed for Respondents willful and knowing violations of the FOIA..............................................................45 Cost and Fees should have been awarded under General Statutes........................................................................46 Christian is entitled to attorneys fees.......................................47

2.

3.

4. O.

The SCC erred when it denied Christians Verbal Motion To Introduce The Relevant Unanswered FOIA 1 Into Evidence. (Error 2, 5, 17)............................................................47 iii

P.

Future Proceedings Before the Commission Regarding Applicability of the FOIA Would be Futile....49

VI.

CONCLUSION..................................................................................50

CERTIFICATE OF COMPLIANCE...51 CERTIFICATE OF SERVICE.51

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TABLE OF CITATIONS CASES Page

Atlas Underwriters, Ltd. v. State Cor... , 237 Va. 45, 375 S.E.2d 733, 1989 Va. LEXIS 3, 5 Va. Law Rep. 1388 (1989)....22, 23, 46 Bd. Of Supers. v. Southland Corp., 224 Va. 514, 297 S.E.2d 718 (1982). .....27 Bell v. Saunders, 278 Va. 49, 54, 677 S.E.2d 39, 41 (2009) ...27 Bush v. City of Philadelphia, 367 F. Supp. 2d 722, 725 (E.D. Pa. 2005)25, 37, 49 Cartwright v. Commonwealth Transp. Co... , 270 Va. 58, 613 S.E.2d 449 (2005) ..,,,29 Connell v. Kersey, 262 Va. 154 (2001) .18, 19 Council v. Commonwealth, 198 Va. 288, 291, 94 S.E.2d 245, 247 (1956)36,37 Cuomo v. Clearinghouse Assn. L.L.C., 2009 U.S. LEXIS 4944 (2009))... 22, 23 Donhauser v. Goord, 314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004).. 49 Fields v. Blake, 349 F. Supp. 2d 910, 915 (E.D. Pa. 2004)....25 First Natl Bank in St. Louis v. Missouri, 263 U.S 640, 660, 44 S.Ct. 213, 215, 68 L. Ed. 486, 494 (1924).22,23 Harris v. Commonwealth, 222 Va. 205, 209-10, 279 S.E.2d 395, 398 (1981)...36 John H. Fenter v. Norfolk Airport Authority, Record No. 062563, Supreme Court of Virginia 274 Va. 524; 649 S.E.2d 704; 2007 Va. LEXIS 102.. 44 Potomac Edison Co. v. State Corp. Com... , 276 Va. 577, 667 S.E.2d 772, 2008 Va. LEXIS 121 (2008)14

Redman v. Commonwealth , p1625 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) ...15 Reese v. Wampler Foods, 222 Va. 249, 252, 278 S.E.2d 870 (1981)..18 RF & P Corp. v. Little, 440 S.E.2d 908, 247 Va. 309 (1994). 45 Rohanna v. Vazzana, 196 Va. 549, 553-54, 84 S.E. 2d 440, 442 (1954)36 Trimble v. Trimble, 2010 Va. App. LEXIS 161 (Va. Ct. App. Apr. 27, 2010) ....27 Wiles v. Wiles, 134 W. Va. 81, 58 S.E.2d 601 (1950) 32 Wilson v. King, 2010 U.S. Dist. LEXIS 27165 (E.D. Pa. Mar. 23, 2010) 25, 49 STATUTES AND CONSTITUTIONS United States Constitution, Fifth Amendment.........................................................26 United States Constitution, Fourteenth Amendment......26 Virginia Constitution Article IX, 4 23, 24 Va. Code 1-212 22 Va. Code 2.1-346. 23, 25, 45 Va. Code 2.2-3700...1, 3, 5, 6,7, 8, 11, 15 Va. Code 2.2.3700 (B).18 Va. Code 2.2-370116, 19, 20 Va. Code 2.2-3703(A)(4). 18 Va. Code 2.2-3703(A)(5). 22

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Va. Code 2.2-370420, 21, 34 Va. Code 2.2-3704(A).........16 Va. Code 2.2-3704(B) 14 Va. Code 2.2-3704(B)(4)... 42, 44 Va. Code 2.2-3704(E).... 34, 42 Va. Code 2.2-3713..4, 6, 13, 23, 39, 45 Va. Code 2.2-371426, 46, 50 Va. Code 8.01-18438 Va. Code 8.01-19127 Va. Code 8.01-428(B).37 Va. Code 12.1-19...21, 22 Va. Code 12.1-28 ...26 Va. Code 16.1-69.5. 22 RULES Supreme Court Rule 5A:18.... 15 Supreme Court Rule 5A:19(f) ....51 Commission Rule 5 VAC 5-20-100 B ....7, 8, 24 Commission Rule 5 VAC 5-20-100 C ..7, 8, 11, 27, 37, 38

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I.

NATURE OF THE CASE AND MATERIAL PROCEEDINGS Virginia citizen George H. Christian, pro se, brought this action

against Virginia State Corporation Commission (SCC or Commission), Mark C. Christie, James C. Dimitri, and Joel H. Peck (collectively Respondents). Christian alleged Respondents knowingly and willfully violated his right of access to public records, as well as the plain requirements of the Virginia Freedom of Information Act, Virginia Code 2.2-3700 et seq. (FOIA). Appendix (App.) 1-13. Christian requested declaratory judgment that the FOIA applied to the Respondents, preliminary and permanent injunctive relief to require the Respondents to comport with the FOIA, and costs and attorneys fees, among other relief requested. Respondents continue to assert that the FOIA is inapplicable as to the SCC. App. 64-73, 117, 140, 172. On November 5, 2010, the SCC issued its final order dismissing Christians petition on the grounds that no actual controversy existed. App. 145-147. The SCC declined to address the Respondents alleged past and ongoing violations of the FOIA, and did not rule on Christians request for costs, attorneys fees and such other and further relief as deemed just and proper. App. 145-147. Christians motion to reconsider, App. 151-173, and his motion to correct the record nunc pro tunc, App. 174-180, were denied.

App. 181-182. A petition for appeal was timely filed with the Supreme Court of Virginia, App. 185, and an appeal was awarded. II. ASSIGNMENTS OF ERROR 1. The Commission erred when it restyled the case from the way Christian initiated the action which was: George H. Christian, Petitioner, v. State Corporation Commission, Mark C. Christie, James C. Dimitri, Joel Peck, Respondents. to the way the Commission self-styled the case which was: Petition of George H. Christian For Injunctive and Declaratory relief against the Office of the Clerk of the State Corporation Commission pursuant to the Virginia Freedom of Information Act. because the Respondents were each properly named to the Petition, and should not have been removed. 2. The Commission erred because its Final Order is legally wrong on its face. The Commission erred because its Final Order is legally wrong on its face in that it made no finding on the threshold issue whether the SCC (including the Office of the Clerk), Mark C. Christie, James C. Dimitri, and Joel Peck are subject to the FOIA. The Commission erred because its Final Order completely ignores the Respondents previous and ongoing violations of the FOIA and the statutory requirement that the Respondents comport to the FOIA.

3.

4.

5.

The Commission erred when it denied Christians Petition for Reconsideration and/or Rehearing. The Commission erred when dismissed Christians declaratory judgment action seeking an adjudication that the Respondents are (a) subject to the Virginia Freedom of Information Act, Virginia Code 2.2-3700 et seq. (the FOIA), and they (b) knowingly and willfully violated the FOIA. The Commission erred when it denied Christians request for temporary injunctive relief seeking to enjoin Respondents from denying the rights and privileges afforded by the FOIA. The Commission erred when it denied Christians request for permanent injunctive relief seeking to enjoin Respondents from denying the rights and privileges afforded by the FOIA. The Commission Erred When it Denied Christians Motion to Correct Final Order Nunc Pro Tunc. The Commission Erred When it Denied Christians Motion to Reconsider. (This was an inadvertent duplicate of Error No. 5). The Commission erred when it did not rule on Christians request for his costs as prescribed by the FOIA. The Commission erred when it did not award Christian his costs as prescribed by the FOIA. The Commission erred when it concluded that Christian sought declaratory relief as provided under the [Virginia Freedom of Information] Act. The Commission erred when it found the Clerks Office timely provided the requested information to Christian. The Commission Erred When it Found that on May 21, 2010, Christian filed a Motion to Expedite Disposition in which he requested, among other things, that the Commission grant an

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

expedited hearing for a temporary injunction within seven (7) days pursuant to 2.2-3713 of the Code. 16. The Commission erred when it found the Chief Hearing Examiners recommendation to dismiss the Petition on the grounds that no actual controversy exists in this matter given the Clerks Offices timely response to the Petitioners request for records. The Commissioner erred when it denied Petitioners Verbal Motion To Introduce The Relevant Unanswered FOIA 1 Into Evidence.

17.

III.

QUESTIONS PRESENTED 1. Whether the Commission erred when it restyled the case from the way Christian initiated the action which was: George H. Christian, Petitioner, v. State Corporation Commission, Mark C. Christie, James C. Dimitri, Joel Peck, Respondents. to the way the Commission self-styled the case, which was: Petition of George H. Christian For Injunctive and Declaratory relief against the Office of the Clerk of the State Corporation Commission pursuant to the Virginia Freedom of Information Act. because the Respondents were each properly named to the Petition, and should not have been removed. 2. Whether the Commission erred because its Final Order is legally wrong on its face. Whether the Commission erred because its Final Order is legally wrong on its face in that it made no finding on the 4

3.

threshold issue whether the SCC (including the Office of the Clerk), Mark C. Christie, James C. Dimitri, and Joel Peck are subject to the FOIA. 4. Whether the Commission erred because its Final Order completely ignores the Respondents previous and ongoing violations of the FOIA and the statutory requirement that the Respondents comport to the FOIA. Whether the Commission erred when it denied Christians Petition for Reconsideration and/or Rehearing. Whether the Commission erred when dismissed Christians declaratory judgment action seeking an adjudication that the Respondents are (a) subject to the Virginia Freedom of Information Act, Virginia Code 2.2-3700 et seq. (the FOIA), and they (b) knowingly and willfully violated the FOIA. Whether the Commission erred when it denied Christians request for temporary injunctive relief seeking to enjoin Respondents from denying the rights and privileges afforded by the FOIA. Whether the Commission erred when it denied Christians request for permanent injunctive relief seeking to enjoin Respondents from denying the rights and privileges afforded by the FOIA. Whether the Commission Erred When it Denied Christians Motion to Correct Final Order Nunc Pro Tunc. Whether the Commission Erred When it Denied Christians Motion to Reconsider. (This was an inadvertent duplication of Error No. 5). Whether the Commission erred when it did not rule on Christians request for his costs as prescribed by the FOIA.

5.

6.

7.

8.

9.

10.

11.

12.

Whether the Commission erred when it did not award Christian his costs as prescribed by the FOIA. Whether the Commission erred when it concluded that Christian sought declaratory relief as provided under the [Virginia Freedom of Information] Act. Whether the Commission erred when it found the Clerks Office timely provided the requested information to Christian. Whether the Commission Erred When it Found that on May 21, 2010, Christian filed a Motion to Expedite Disposition in which he requested, among other things, that the Commission grant an expedited hearing for a temporary injunction within seven (7) days pursuant to 2.2-3713 of the Code. Whether the Commission erred when it found the Chief Hearing Examiners recommendation to dismiss the Petition on the grounds that no actual controversy exists in this matter given the Clerks Offices timely response to the Petitioners request for records. Whether the Commissioner erred when it denied Petitioners Verbal Motion To Introduce The Relevant Unanswered FOIA 1 Into Evidence.

13.

14.

15.

16.

17.

IV.

STATEMENT OF FACTS Christian requested public records from Joel Peck, Clerk of the

Commission (the Clerk), pursuant to the FOIA by two letters mailed, emailed, and faxed on Wednesday, May 13, 2009, (VFOIA 1 and VFOIA 2). App. 8, 60-61, 100-102, 167. By letter to Christian from Philip R. de Haas, Deputy General Counsel, dated Friday, May 22, 2010, the SCC acknowledged that the Clerk

received both VFOIA 1 and VFOIA 2 in [their] office on May 18, 2009 (notwithstanding both fax and email delivery by Christian on Wednesday, May 13, 2009). App. 8, 167. The letter also stated In your requests, you have asked for certain employee information [VFOIA 1], as well as certain information regarding overpayments or unused payments [VFOIA 2] (Emphasis and bracketed referenced provided). Christians requests were denied. App. 61 (Tr. 14-15). The Clerk did not provide any of the records requested and instead averred the FOIA does not apply and that the records requested in VFOIA 1 and VFOIA 2 were not readily available. App. 9. By letter directed to the Clerks division head Danny M. Payne, Chief Administrative Officer, dated and mailed May 28, 2009, Christian advised he was dissatisfied with the outcome of both his requests. App. 10. By letter dated June 3, 2010 to Christian from Philip R. de Haas, Deputy General Counsel, the SCC responded only by stating the Commission takes the position, and has continuously taken the position, that the Act is inapplicable to it. The Respondents did not provide a statutory response or the records requested, nor express any intention to ever provide the records. App. 11-13.

On June 24, 2009, having received no records or statutory response to his VFOIA 1 and VFOIA 2, Christian filed his petition for a temporary and permanent injunction, and his petition for declaratory relief. Christian complained of an actual controversy and asked the SCC to find (a) the Respondents are subject to the FOIA, (b) the Respondents unlawfully denied the Petitioner the rights and privileges afforded by the FOIA, and (c) the Respondents knowingly and willfully violated the FOIA. Christian further requested the SCC (a) grant an expedited hearing for Temporary Injunction within 7 days, (b) enter an order declaring the Respondents are subject to the FOIA, (c) grant a Temporary Injunction to enjoin the Respondents from denying the rights and privileges afforded by the FOIA, (d) grant a Permanent Injunction to permanently enjoin the Respondents from denying the rights and privileges afforded by the FOIA, (e) enter an order declaring the Respondents knowingly and willfully violated the FOIA, (f) enter findings of fact and conclusions of law, (g) grant costs and attorneys fees, and (h) grant such other and further relief as deemed just and proper. App. 113. After the commencement of this action, the Clerk again acknowledged both of Petitioners requests by letter dated July 9, 2009 titled Re: Your Freedom of Information Act requests dated May 13, 2009, and provided a

compilation responsive only to VFOIA 2. App. 117-118. (Emphasis provided). The Clerk still did not provide any of the records requested in VFOIA 1. App 100-102. In its Scheduling Order dated July 10, 2009 without a hearing or notice to the parties the SCC ruled that Respondents State Corporation Commission, Mark C. Christie, James C. Dimitri, and Joel Peck are unnecessary and improper parties to this proceeding. The SCC, among other things, dropped all of Christians originally named Respondents, including the SCC, Christie, Dimitri, and Peck from the case, and completely restyled the case to For injunctive and declaratory relief against the Office of the Clerk of the State Corporation Commission pursuant to the Virginia Freedom of Information Act. App. 18-19 (caption and footnote 1). On July 15, 2009, the Clerks Office filed a Motion to Dismiss and Answer to Petition. App. 20-34. On July 28, 2009, the SCC, among other things, entered an Order denying Christians request for an expedited hearing. App. 35-37. On September 11, 2009, the Chief Hearing Examiner issuer her ruling scheduling oral arguments on the SCCs Motion to Dismiss. App. 38. On December 1, 2009, Christian filed a Memorandum in Support of Petitioners Response in Opposition to the Motion to Dismiss, in which he

requested, among other things, that the SCC deny the Motion to Dismiss, as well as decide the Petition on the merits and grant the relief contained therein App. 42-52. On December 2, 2009, oral argument was heard on the SCCs Motion to Dismiss. Christian appeared pro se, and Philip R. de Haas, Deputy General Counsel of the SCC, appeared on behalf of the Clerks Office. App. 53-111. The SCCs oral motion to strike Christians Memorandum in Support of Petitioners Response in Opposition to the Motion to Dismiss was granted, App. 63, over Christians objection. App.75. Christian was permitted to read his opposition brief into the record during his oral argument, which he did. App. 76-99, 105 (20-24), 109 (3-6). The Chief Hearing Examiner requested Christian read his unanswered VFOIA 1 into the record, App. 100 (6-25) which he did, App 100-102, and his verbal motion to enter the document itself into evidence was taken under advisement. App 109 (22-24). On May 21, 2010, after nearly six months without a ruling on the Motion to Dismiss, Christian filed a Motion to Expedite and requested the SCC do only three things: (1) grant the motion to expedite, (2) enter an order denying the Defendants Motion to Dismiss by June 25, 2010, (3) such other and further relief as the Court deems appropriate. App. 112. The

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Office of the Clerk filed an opposition brief. App. 113-119. The SCC did not rule on the motion. On September 2, 2010, the Chief Hearing Examiner issued her report in the matter, finding that the Petition for declaratory relief filed pursuant to Commission Rule 5 VAC 5-20-100 C, can be dismissed without considering the merits of the question raised there is no longer an actual controversy at issue. App. 120-135. On November 5, 2010, the SCC adopted the Chief Hearing Examiners recommendation and dismissed the petition. App. 145-147. Christians motion to reconsider, App. 151-173, and his motion to correct the record nunc pro tunc, App. 174-180, were denied. App. 181-182. A petition for appeal was timely filed with the Supreme Court of Virginia, App. 185189, and an appeal was awarded. V. PRINCIPLES OF LAW, ARGUMENT AND AUTHORITIES The SCCs position that it is never subject to the FOIA is simply wrong. App. 79 (9-10), 142. And, contrary to the final order of the SCC, the controversy did not end when the Respondents belatedly produced in direct violation of the FOIA a compilation of some of the public records 52 days after VFOIA 1 and VFOIA 2 were faxed, emailed and mailed and only then after litigation was commenced. App. 8, 117, 142, 167. Christian

11

continues to request public records, the SCC continues to aver the FOIA does not apply, provides records on a voluntary basis to the extent it is able. according only to the vagaries of its own policy. App. 140, 172. The SCC erroneously found that no actual controversy existed in this matter and ordered the petition dismissed. App. 147. The SCCs withholding of whole categories of public records as opposed to invoking any specific exemption permitted under the FOIA or recognized under common law is ongoing, unlawful conduct. App. 140, 142. Neither Christian nor the public - should be required to rely on the SCCs good nature and its when we get around to it and if we feel like it disclosure of public records. App. 142. The Virginia Freedom of Information Act, Va. Code 2.2-3700 et seq., was enacted to ensure that citizens had an opportunity to understand their government, and that government would be accountable to the populace. The statutes statement of purpose declares that [t]he affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. Code 2.2 3700. Under the statute, citizens must be allowed access to public records of the state and localities in strictly prescribed procedures and time frames, subject to very narrow exemptions.

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Code 2.2-3704. The General Assembly has expressly provided that the provisions of the FOIA are to be liberally construed. App. 79 (23-25). As shown, the SCC failed to correctly apply the controlling legal principles, findings of fact were contrary to evidence or without evidentiary support, and the order is plainly wrong on its face. App. 142. This was a mistake of law, violated Christians constitutional rights, and resulted in manifest injustice. Palpable material mistakes of law appear on the face of the order and throughout the record so great as to indicate partisan bias. There is no evidence on the record that the two improperly removed Commissioners named defendants Christie and Dimitri abstained from participating in the ruling that dismissed the action. App. 80. It is well held that they should not participate or rule on matters concerning their own pecuniary interests. If Christie and Dimitri were found to have willfully and knowingly violated the FOIA, they would be subject to penalties for their actions. The SCC has unilaterally decided without an Attorney General opinion or any supporting court ruling that it is wholly exempt from the FOIA. App. 96-97. This self-interested construction results in an ongoing violation of the FOIA, and is clearly a justiciable controversy that ought to have been decided. The SCCs order dismissing this case endorses the

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SCCs ongoing and flagrant disregard of Section 2.2-3704(B) of the Virginia Code. The SCC upheld the actions of the Respondents (i.e., their own actions) even though their actions clearly violated the FOIA. This Court should find that the FOIA is applicable to the SCC, reverse the SCCs errors and order that Christian receive the relief requested. Alternatively, Christian requests this Court exercise its original jurisdiction and issue a writ of mandamus compelling the SCC to comport its conduct to the FOIA and to provide the still as yet unprovided records requested pursuant to VFOIA 1. App. 100-102, 167. In the event a remand is deemed appropriate, it should be ordered to be held in front of an unbiased tribunal, with all the original Respondents reinstated. A. Standard of Review

Recently, in Potomac Edison Co. v. State Corp. Com... , 276 Va. 577, 667 S.E.2d 772, 2008 Va. LEXIS 121 (2008), this Court restated the standard of review applied to decisions of the SCC: When a Commission decision is based on the application of principles of law, we will affirm the decision if the Commission has correctly applied the controlling legal principles. However, we are required to reverse a Commission decision if it is based on a mistake of law. (Internal citations and quotations omitted).

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B.

Review Pursuant to Good Cause Shown and Ends of Justice Provisions Pursuant to Rule 5A:18

To the extent Christian has failed to properly raise an argument or preserve any matter for review on appeal, he seeks review of this entire matter under the provisions of Rule 5A:18 which provides except for good cause shown or to enable the Court of Appeals to attain the ends of justice. As shown in this appeal, the SCCs dismissal of this case resulted in a miscarriage of justice. Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (In order to avail oneself of the exception, a defendant must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred.) The SCC being allowed to wholly exempt itself from the FOIA and to continue its unlawful conduct unmolested is a miscarriage of justice that has resulted in an ongoing violation of the law prejudicial to Christian and the public at large. This unlawful conduct is ripe for adjudication. The ends of justice will be served in this case by finding the FOIA applicable to the SCC. Thus, for good cause shown and to achieve the ends of justice, this Court should consider all the arguments and authorities contained herein to conclude this matter.

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C.

The SCC is a Public Body and therefore must comply with all of the FOIAs provisions (Errors 2, 3, 4, 5).

The fundamental command of the FOIA is that Except as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth... Code 2.2-3704(A). Public records are all writings and recordings . . . in the possession of a public body or its officers, employees or agents in the transaction of public business. A public body means any commission supported wholly or principally by public funds. Code 2.2-3701. (Emphasis provided). A plain reading of the statute shows the SCC satisfies this clause of the definition of a public body because it is a commission. The SCC has not argued that it is not a commission. App. 80. (1-19). Notably, the statute specifically defines any commission as a public body. Contrary to the SCC argument, the statute does not distinguish between commissions that are constitutionally established departments of government with sweeping regulatory powers and the hearing Court powers the Commission has, App. 105 (13-16), and those garden-variety commissions such as the Virginia State Crime Commission or the Virginia Racing Commission. If the General Assembly intended to exempt any commission solely on the basis of its formation and function, it would have done so. 16

Notwithstanding this specific inclusion of commission that plainly defines the SCC as a public body and despite the lack of any recognized exemption in the statute upon which to rely the SCC nonetheless improperly takes the position, and has continuously taken the position that the Act is inapplicable to it. (the go pound sand letter) App. 11. This construction effectively excludes the SCC from the FOIAs disclosure and procedural requirements, is not based upon the language of the legislation itself, and undermines the General Assemblys expressed intent in enacting the statute. The FOIA is expressly intended to provide public access to government operations, with only narrow and limited exceptions. This is clear from the statement of policy that the General Assembly enacted: By enacting this chapter, the General Assembly ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statuteAny exemption from public access to records shall be narrowly construed and no record shall be withheld unless specifically made exempt pursuant to this chapter or other specific provision

17

of law. Code 2.2.3700 (B). The SCCs position directly conflicts with this policy statement. Furthermore, where the General Assembly intended a commission to be wholly exempt, it provided the exemption in the statute. App. 83 (5-6), 96. The Virginia Crime Commission is exempt by statute. Code 2.23703(A)(4). Because the General Assembly specifically included the Virginia Crime Commission as wholly exempt from the FOIA, and not the State Corporation Commission, it obviously did not intend for the SCC to be exempt. App 83 (1-5), 84 (16-25). In accordance with the rule of expressio unius est exclusio alterius, if the legislature excepts a certain class that would otherwise fall within the terms of a statute, it is necessarily inferable that the legislature did not intend to except other classes. Reese v. Wampler Foods, 222 Va. 249, 252, 278 S.E.2d 870 (1981). The SCCs reliance on Connell v. Kersey, 262 Va. 154 (2001) to support the notion they are totally exempt from the FOIA was misplaced. App. 31-32. As a preliminary matter, this case is distinguishable because commissions - unlike Commonwealths Attorneys are specifically defined in the statute as public bodies. Furthermore, Connell does not stand for the principle that constitutional officers and other public officials are wholly exempt from the provisions of the FOIA.

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In Connell, this Court was called upon to determine whether constitutional officers, such as a Commonwealths Attorney, are public bodies within the meaning of the FOIA. Since Connell, the legislature amended the statute. App. 81-82. Code 2.2-3701 now provides constitutional officers shall be considered public bodies and, except as otherwise expressly provided by law, shall have the same obligations to disclose public records as other custodians of public records. Respondents Christi, Dimitri, and Peck are employed by the SCC. Accordingly, each is an employee of a public body, and is subject to the provisions of the FOIA. D. The SCC is a public body because it is an organization supported wholly or principally by public funds (Errors 2, 3, 4, 5).

Code 2.2-3701 plainly defines public body to include any commission supported wholly or principally by public funds. The SCC is supported in whole by public funds, and, accordingly, is a public body within the meaning of Code 2.2-3701. This funding scheme brings the SCC squarely within the FOIAs definition of a public body as any commission supported wholly or principally by public funds. App. 80 (1-11).

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E.

Christie, Dimitri, and Peck are responsible or managing employees of a public body, and thus bound by the requirements of Code 2.2-3704 (Errors 2, 3, 4, 5).

The SCC is a public body under the FOIA. Christie, Dimitri, and Peck are each responsible or managing employees of the SCC, and each is a custodian of some or all of the records requested. App.3. As such, each were required to comport to all the provisions of the FOIA, including Code 2.23704, which requires a statutory response in writing to Christians request within five working days of receiving it. Code 2.2-3704(B). App. 3. By failing to make a statutory written response or provide actual records responsive to the request in that period, each violated the provisions of the FOIA. Code 2.2.3704(E). F. Records Were Public Records (Errors 2, 3, 4, 5).

Code 2.2-3701 defines public records to include all writings and recordings in the possession of a public body or its officers, employees or agents in the transaction of public business. It is not disputed that both FOIA 1 and FOIA 2 properly requested public records. App. 3-4. App. 8, 9, 100-102, 152, 167. G. All SCC Records Are Not Exempt(Errors 2, 3, 4, 5).

The FOIA is without question the principal statute making all records available to the public, including those in the SCCs possession not

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specifically exempted by law. If fact, the FOIA is the only statute that broadly encompasses all records. App. 95. Over past decades, the General Assembly has established numerous laws separate from the FOIA regarding the availability of documents (too numerous to list here or in the FOIA for that matter). App. 83 (23-24). The General Assembly acknowledges that other statutory provisions might govern some records, and for those narrow and specific circumstances provides the ability to easily harmonize the statutes by inclusion of the Except as otherwise specifically provided by law language found in Code 2.2-3704. App. 83-84. The SCC has executive, legislative, and judicial authority. When acting in its judicial capacity, it acts as a court of record. Code 12.1-13 (In all matters within the jurisdiction of the Commission, it shall have the powers of a court of record.) An example of the narrow except as otherwise specifically provided by law exemption enjoyed by the SCC pursuant to the FOIA is found in 12.1-19 of the Code of Virginia. This statute imposes a duty on the Clerks Office to make all of the records, documents, papers, and files of the Commission open to public examination to the same extent as the records and files of the courts of this Commonwealth. (Emphasis provided).

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Code 2.2-3703(A)(5) provides direction on the treatment of court records under the FOIA: the records required by law to be maintained by the clerks of the courts of record, as defined in 1-212, and courts not of record, as defined in 16.1-69.5. However, other records maintained by the clerks of such courts shall be public records and subject to the provisions of this chapter. (Emphasis provided). As shown, Code 12.1-19 easily harmonizes with and is subordinate to the FOIA, which plainly provides that all records are open to public inspection. App. 89. Reliance on this Code section by Respondents to support the notion that the SCC is exempt is misplaced. App. 25.Their argument actually shows that the FOIA applies because the records and files of the courts of this Commonwealth are specifically subject to the FOIA. H. Enforcement Mechanism Exists (Errors 2, 5).

The SCCs relies on First Natl Bank in St. Louis v. Missouri, 263 U.S 640, 660, 44 S.Ct. 213, 215, 68 L. Ed. 486, 494 (1924)(citing Cuomo v. Clearinghouse Assn. L.L.C., 2009 U.S. LEXIS 4944 (2009)), App 30, to advance their position that this Courts ruling in Atlas Underwriters, Ltd. v. State Cor... , 237 Va. 45, 375 S.E.2d 733, 1989 Va. LEXIS 3, 5 Va. Law Rep. 1388 (1989) invalidates the entire FOIA as to the SCC. This argument

22

is misplaced. The Atlas court affirmed the trial courts ruling that dismissed the petition for lack of jurisdiction former Code 2.1-346 (currently codified in Code 2.2-3713) on the grounds that that portion of the statute was not constitutional as applied to the Commission because of the jurisdictional limitations of Article IX, Section 4 of the Virginia Constitution. Notably, the Atlas Court did not find that the entire FOIA, nor the entirety of 2.2-3713 was inapplicable to the SCC. App. 92. Christian argued The Supreme Court has not precluded a direct remedy by way of mandamus to cure the Commissions failure to comport to the FOIA, nor has it determined to find the FOIA inapplicable as to the Commission, despite having repeated opportunities to do soApp. 79, 94. This case is distinguishable from First Natl a case that was specific to a conflict between state and federal law where the national statutes are interrogated for the sole purpose of ascertaining whether anything they contain constitutes an impediment to the enforcement of the state statute Here there is no such conflict because this is a case where only a part of a state statute is in question. The General Assembly did not constrain or forbid enforcement remedies under common law, App. 93, nor remedies or enforcement available under Va. Const. art. IX, 4, which provides that this Court has

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exclusive jurisdiction over all challenges to all actions of the State Corporation Commission. App. 91, 99. In the light of the express intent of the FOIA, and the availability of enforcement mechanisms available under the Virginia Constitution and common law, the SCCs interpretation is unworkable. The construction must be made with the practical purpose of the statute in mind. I. The SCC Erred When It Restyled the Case. (Errors 1, 2, 5, 13) The SCC erred by restyling the case and hand-picked the Office of the Clerk as sole respondent. App. 163-164. Commission Rule 5 VAC 520-100 B states provides: Persons having a cause before the commission, whether by statute, rule, regulation, or otherwise, against a defendant, including the commission, a commission bureau, or a commission division, shall proceed by filing a written petition . Christian filed a written petition and properly alleged that the Respondents knowingly and willfully violated the FOIA. App. 2 (at 4(e)), 5 (at 24), 6. Accordingly, the SCC, Mark C. Christi, James C. Dimitri, and Joel Peck were each properly named as Respondents to the Petition, App. 1, and should not have been removed. App. 14 (see caption and footnote 1). Christian plainly objected to the Commission removing the officers that were originally listed on my original Petition App. 80. 24

Further, when the SCC restyled the case, it mischaracterized Christians action in the caption as injunctive and declaratory relief solely pursuant to the Virginia Freedom of Information Act. Christian did not request injunctive relief or declaratory relief solely pursuant to the FOIA. Christian, pro se, requested injunctive and declaratory relief generally, not specific to the FOIA. The SCC "must construe pro se complaints liberally, and such complaints are held to less stringent standards than those drafted by attorneys." 1 "Because [the Petitioner] has filed his complaint pro se, [the Commission] must liberally construe his pleadings, and . . . apply the applicable law.2 The caption of the case also conflicts with the findings of the Chief Hearing Examiner who found that the Petition for Declaratory Relief [was] filed pursuant to Commission Rule 5 VAC 5-20-100. (not the FOIA) App. 120. And petitions for declaratory relief are filed pursuant to Commission Rule 5 VAC 5-20-100. App. 129. It is well held that the body of the pleading not the caption controls. Code Ann. 12.1-28 provides Before the Commission shall enter any finding, order, or judgment against any person, it shall afford such 1 Wilson v. King, 2010 U.S. Dist. LEXIS 27165 (E.D. Pa. Mar. 23, 2010) quoting Bush v. City of Philadelphia, 367 F. Supp. 2d 722, 725 (E.D. Pa. 2005). See also Fields v. Blake, 349 F. Supp. 2d 910, 915 (E.D. Pa. 2004). 2 Id. 25

person reasonable notice of the time and place at which he shall be afforded an opportunity to introduce evidence and be heard. The Chief Hearing Examiner without notice or a hearing entered an order that restyled the case and removed all the Respondents originally named. This allowed the Respondent Commissioners Christie and Dimitri to participate in the final findings of the SCC that touched on their pecuniary interests. Christian was entitled to a finding as to whether the removed Respondents failure to provide the information requested was a willful and knowing violation of the FOIA as alleged pursuant to Code 2.2-3714. Because the removed Respondents properly named in Christians petition may have been subject to a civil penalty removing them from the style of the case impermissibly rendered the deterrent element of the statute nugatory and violated Christians Fifth and Fourteenth Amendments constitutional rights, fairness, and due process. Christian was not given reasonable notice or afforded a fair opportunity to be heard before the case was restyled. J. The Commission erred when dismissed Christians declaratory judgment action (Errors 2, 3, 4, 5, 6).

Commission Rule 5 VAC 5-20-100 C provides: Persons having no other adequate remedy may petition the commission for a declaratory judgment. The legislature has expressly provided that the declaratory 26

judgment statutes are to be liberally interpreted and administered with a view to making the courts more serviceable to the people. Code 8.01-191; see Trimble v. Trimble, 2010 Va. App. LEXIS 161 (Va. Ct. App. Apr. 27, 2010) quoting Bd. Of Supers. v. Southland Corp., 224 Va. 514, 297 S.E.2d 718 (1982). 1. Declaratory Judgment Was Proper and Should Have Been Granted.

The SCC should have issued a declaration. App. 161-162. This Court has made clear that Virginia's declaratory judgment statutes provide a mechanism for resolving uncertainty in controversies regarding legal rights, without requiring one party to invade the asserted rights of another in order to permit an ordinary civil action for damages. A declaratory judgment action, which is preventive relief, may only be obtained when an actual controversy exists. Bell v. Saunders, 278 Va. 49, 54, 677 S.E.2d 39, 41 (2009) (citations omitted). Here, the petition for declaratory judgment was filed long before any public records were provided and plainly sought to establish Christians legal rights under the FOIA. The matter was not resolved. A finding that the FOIA applied to the SCC may have resulted in cost and attorneys fees being awarded, among other relief requested. Further, the conduct complained of was a capable of being repeated and evading review. App. 27

102 ((15-25). In fact, it has been repeated and is continuing. Even after Christian filed the declaratory judgment action, the SCC continued to resist providing the records, and aver the FOIA was inapplicable. App. 11, 140. Furthermore, Mr. de Haas argued that there [was] real question whether the Commission constitute[d] a public body under FOIA because it was an agency that derived its authority from the Virginia Constitution rather than from legislative or executive action. App. 71-72. Under the principles set out above, this constituted an actual antagonistic assertion and denial of right ripe for declaratory judgment, and the SCC improperly dismissed Christians request for declaratory relief. And, although the compilation the SCC eventually provided in response to VFOIA 2 at least partially addressed the issue, the declaratory judgment action averred the parties disagreed over whether the FOIA applied, and if so, whether the Clerks belated production of some of the records outside the statutory period was in fact a violation of the FOIA that would in fact entitle Christian be reimbursed for his cost, attorneys fees, and penalties. The SCCs rejection of Christians petition unfairly and effectively sidesteps the justiciable issue of the applicability of the FOIA as to the Respondents, and constitutes legal error. This has produced the unjust result which permits the Respondents to continue denying that the FOIA is

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applicable to them, and caused Christian to expend costs to bring this action as a result of the Respondents unlawful conduct. This ongoing, unlawful conduct will continue to prejudice Christian and the public by allowing the SCC to voluntarily provide records to the extent they are able according to the policy of the Bureau as opposed to providing records according to the strictly prescribed procedures and time frames pursuant to the FOIA. Such a result clearly would not be in the public interest. This Court should issue a declaration because the parties clearly disagree, and there is no other way to obtain relief. App. 162. Without a declaration Christian and the public face a virtually insurmountable obstacle to receive public records in the manner and time frame required by the FOIA, subject only to recognized exemptions under the FOIA. In fact, as recently as November 18, 2010 two weeks after the final order in this case the Respondents continue to aver the Act does not apply. App. 172. 2. The Petition Is Not Moot.

The Respondents are not exempt from the FOAI, and if found to be in violation Christian is entitled to his cost, attorneys fees, and penalties. App. 156. Citing Cartwright v. Commonwealth Transp. Co... , 270 Va. 58, 613 S.E.2d 449, 2005, Respondents correctly stated that providing the requested information to the Petitioner may not fully resolve all the issues raised in the

29

Petition and render it moot. App. 114. Nonetheless, the Final Order expressly declined to make a finding on whether the FOIA applied to the Respondents. Because the matter is not moot, and given the relief requested, the SCC was under an obligation to make findings on the applicability of the FOIA as to the Respondents before it dismissed the Petition. Instead, the Final Order omits critical findings in determining (1) whether the FOIA was applicable to the Respondents and (2) whether the Respondents violated the FOIA. Without the omitted findings, the Final Order contains an error of law. App 156. The Commissioners [sic] policy and practice of not comporting itself to the FOIA will impair Petitioners lawful access to information in the future App. 78. (20-23), 142. Receiving public records, in the lawful manner and time frame prescribed by the FOIA to which Christian is entitled, will continue to be unlawfully and needlessly more difficult if not impossible if declaratory judgment is not entered. Therefore, Christian asks this Court enter declaratory judgment as to whether the FOIA is applicable to the Respondents, and whether the Respondents violated the FOIA. App. 156.

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3.

Respondents Conduct Is Capable of Repetition Yet Evading Review

The Respondents continue to flatly deny that the FOIA is applicable to them, despite the Legislature having not chosen not to specifically identify Respondents as exempt. The underlying dispute and the Respondents unlawful conduct is continuing. Thus, this controversy is ongoing and one capable of repetition, yet evading review. Therefore, declaratory judgment is proper. App. 155, 157. K. The Commission erred when it denied Christians request for temporary and permanent injunctive relief. (Errors 2, 3, 4, 7, 8).

The SCC erred when it did not rule on Christians request for temporary and permanent injunctive relief, a de facto denial of the relief requested. The injunction should have been issued because a violation of the FOIA is an irreparable injury for which no adequate remedy at law exists. Wiles v. Wiles, 134 W. Va. 81, 58 S.E.2d 601 (1950)(Irreparable injury is an injury which is not susceptible to remedial damages or which is capable of measurement by any ordinary standard.) The Respondents delay in providing VFOIA 1 and VFOIA 2 in the manner and time frame prescribed by the FOIA is unlawful, and prejudicial to Christian. Further, the Respondents continue to deny the FOIA is applicable to them. FOIA 1 has never been provided. 31

1.

Injunctive Relief Was Proper and Should Have Been Granted

The Respondents are required to provide public records in a timely and forthcoming fashion, subject only to the FOIAs specific and uniform exemptions, not the SCCs independent judgment. No requestor should be forced to jump through needless bureaucratic hoops, or rely on the voluntary compliance offered. Without Christians dogged pursuit of the information through this litigation, it is entirely probable that no records would have ever been provided. Neither Christian, nor the public, should be forced to resort to filing a petition to compel lawful compliance with the FOIA . This is inequitable and unlawful conduct that should be enjoined. Accordingly, Christian requests this Court to enjoin Respondents intentional failure to timely provide all applicable public records in the manner and time frame strictly prescribed by the FOIA in the future. App. 160. 2. The Petition Is Not Moot.

Christian incorporates arguments and authorities contained in Paragraph J, number 2 as if set forth fully here. 3. Respondents Conduct Is Capable of Repetition Yet Evading Review

Christian incorporates arguments and authorities contained in Paragraph J, number 3 as if set forth fully here.

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L.

The SCC erred when it found the Clerks Office timely provided the requested information to Christian. (Error 2, 5, 14).

On September 2, 2010, the Chief Hearing Examiner issued her report in this matter and opined the Clerks Office timely provided the requested information.... App 130. However, in its Final Order, the SCC [a]dopts the Chief Hearing Examiners recommendation to dismiss the Petition on the grounds that no actual controversy exists in this matter given the Clerks Offices timely response to the Petitioners request for records .(Emphasis provided). App. 147. As shown below, no timely response was provided. App. 158-159. 1. The May 22, 2010 Letter Was Not A Response As Defined Under FOIA Respondents never providedtimely response to Christians requests for information. Further, for the SCC to properly reach the legal conclusion that the records were provided timely, it must rule whether the statutory definitions of timely and response pursuant to the FOIA are applicable to the Respondents. It did not. App. 159-160. Both response and timely carry distinct, statutorily defined meanings. Code 2.2-3704 provides in all cases within five working days of receiving a request, provide the requested records to the 33

requester or make one of the following responses in writing (Emphases provided): 1. The requested records are being entirely withheld 2. The requested records are being provided in part and are being withheld in part 3. The requested records could not be found or do not exist 4. It is not practically possible to provide the requested records or to determine whether they are available within the fivework-day period. Such response shall specify the conditions that make a response impossible. If the response is made within five working days, the public body shall have an additional seven work days in which to provide one of the four preceding responses. (Emphases provided). Code 2.2-3704(E) provides Failure to respond to a request for records shall be deemed a denial of the request and shall constitute a violation of this chapter. Nowhere in the Final Order is there any reference to or acknowledgement of these statutory provisions. The letter to Christian from Philip R. de Haas, Deputy General Counsel, dated Friday, May 22, 2010, in which the SCC acknowledged the Clerks receipt in [their] office on May 18, 2009. of both FOIA 1 and FOIA 2, informed Christian that the FOIA did not apply., and that the records requested in FOIA 1 and FOIA 2 were not readily available . App. 9. This was not a response as defined by the FOIA.

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Because the May 22, 2010 letter not comport with any of the four strictly required statutory responses as set forth in the FOIA, the Respondents failure to provide any appropriate response within the fivework-days was in fact a denial of Christians request, and a clear violation of the FOIA.. It follows then because the Respondents letter was not a response it was impossible for it to have been timely as erroneously concluded. As shown, the SCC erred when it reached the legal conclusion the information provided was (a) a response, and (b) was timely without ruling on which legal standard of timely would be applied, and without considering the statutory definition of response under the FOIA. Thus, this matter remains a justiciable controversy and should be ruled on. App 159160. 2. The Partial Information Finally Provided Was Not Timely.

Even if the FOIA is found to be inapplicable to the Respondents, the Respondents only provided part of the information requested after being served with this Petition, nearly two months after failing to respond appropriately to Christians initial requests. Furthermore, since the information requested has not been provided in its entirety, the information request is still open and cannot be considered timely. App. 100-102, 160, 35

167. Even if all the information requested were to be ultimately provided, it clearly would not be timely by any definition. Thus, this matter remains a justiciable controversy and should be ruled on by the SCC. 3. The Clerks Office did not provide the records, the Clerk Did

It is uncontroverted that the Christian requested public records from the Clerk. It was the Clerk not the Clerks Office that solely provided the [incomplete] information sought by Christian. App. 113, 122,164. The Clerk, and the Clerks office are separate legal parties, and are not legally interchangeable. Thus, the Final Order contained legal error because it permitted an inconsistent and contradictory position of the Respondents as to who provided the information. It was the Clerk. Not the Clerks Office. It cant be both. A litigant cannot assume inconsistent and contradictory positions during the course of a single litigation. Rohanna v. Vazzana, 196 Va. 549, 553-54, 84 S.E. 2d 440, 442 (1954). App. 164. M. The SCC Erred When it Denied Christians Motion to Correct Final Order Nunc Pro Tunc. (Errors 2, 5, 9, 15, 16).

The SCC had the authority, and ought to have corrected its Final Order nunc pro tunc, App. 174-180, for the following reasons: to make the record speak the truth . as to cause it acts and proceedings to be set forth correctly. Harris v. Commonwealth, 222 Va. 205, 209-10, 279 S.E.2d 395, 398 (1981) citing Council 36

v. Commonwealth, 198 Va. 288, 291, 94 S.E.2d 245, 247 (1956). To clarify an ambiguous order. To correct Clerical mistakes and errors arising from oversight or from an inadvertent omission. Code 8.01-428(B) 1. The SCC Should Have Corrected Its Order To Reflect The Petitioner Sought Declaratory Relief Pursuant to the Virginia Declaratory Relief Act and Commission Rule 5-20-100-C, Not the FOIA

In his Petition, Christian asked the SCC to [g]rant an order declaring the respondents are subject to the VFOIA . App. 2, 6, 161, 176-177. In its Final Order, the SCC incorrectly stated: The Petitioner seeks declaratory and injunctive relief as provided under the [Virginia Freedom of Information] Act. Nowhere does the record reflect that the Christian cited the FOIA as a basis for his request for declaratory relief. And, while the Christian did not specifically cite the Virginia Declaratory Relief Act, Va. Code Ann. 8.01184 et seq. (the VDRA), or Commission Rule 5-20-100-C, it is axiomatic that the SCC must construe pro se complaints liberally, and such complaints are held to less stringent standards than those drafted by attorneys. Wilson v. King, 2010 U.S. Dist. LEXIS 27165 (E.D. Pa. Mar. 23, 2010) quoting Bush v. City of Philadelphia, 367 F. Supp. 2d 722, 725 (E.D. Pa. 2005). "Because [Christian] has filed his complaint pro se, [the 37

Commission] must liberally construe his pleadings, and . . . apply the applicable law. Id. (Emphasis provided). App. 176-177. Because it appears to Christian that the FOIA does not provide declaratory relief, perhaps the SCCs reference to the FOIA as opposed to the VDRA was inadvertent, or a result of clerical error. It may be that the Commission intended to say Christians request for declaratory relief was under the VDRA and Commission Rule 5-20-100-C not the FOIA. Therefore, Christian requests this Court find his petition for declaratory relief is pursuant to the VDRA, and Commission Rule 5-20-100-C. App. 161. 2. The SCC Should Have Corrected Its Order Where It Stated that on May 21, 2010 Christian filed a Motion to Expedite Disposition in which he requested, among other things, that the SCC grant an expedited hearing for a temporary injunction.

In its Final Order, the Commission incorrectly stated On May 21, 2010, the Christian filed a Motion to Expedite Disposition in which he requested, among other things, that the Commission grant an expedited hearing for a temporary injunction within seven (7) days pursuant to 2.2-3713 of the Code . (Emphasis provided). App. 177-178. However, the May 21, 2010 motion filed by Christian had nothing to do with granting an expedited hearing. In his Motion to Expedite, Christian requested the

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Commission do only three things: (1) grant the motion to expedite, (2) enter an order denying the Defendants Motion to Dismiss by June 25, 2010, (3) such other and further relief as the Court deems appropriate. App. 112. Christians request for an expedited hearing for temporary injunction contained in his Petition was denied by the Commission without a hearing, and was memorialized in its July 28, 2009 Order, nearly a year earlier. The SCC never ruled on Christians request for temporary injunctive relief, a de facto denial. Christian requested the Commission correct its Final Order to remove the erroneous reference to the temporary injunction, and properly reflect that his May 21, 2010 Motion to Expedite requested that the Commission (1) grant the motion to expedite, (2) enter an order denying the Defendants Motion to Dismiss by June 25, 2010, (3) such other and further relief as the Court deems appropriate. Christian further requested that the Final Order reflect that the Commission did not rule on the May 21, 2010 Motion to Expedite. App. 174. 3. The SCC Should Have Corrected Its Order Where It Stated that Clerks Office Provided a Timely Response

On September 2, 2010, the Chief Hearing Examiner issued her report in this matter, which states in pertinent part: Here, the Clerks Office timely provided the requested information to Christian. In its

39

Final Order, however, the Commission used different language with statutory implications: NOW THE COMMISSION [a]dopts the Chief Hearing Examiners recommendation to dismiss the Petition on the grounds that no actual controversy exists in this matter given the Clerks Offices timely response to the Christians request for records . (Emphasis provided). App. 178-180. (a) The information provided was not a timely response

The words timely response do not appear together anywhere in the entire proceedings, not to mention the phrase appeared nowhere in the Chief Hearing Examiners report. App. 178-180. This subtle combination of words is important to distinguish because the words response and timely both carry distinct, statutorily defined meanings pursuant to 2.2-3704 of the VFOIA, which states in pertinent part: B. A request for public records shall identify the requested records with reasonable specificity. The request need not make reference to this chapter in order to invoke the provisions of this chapter or to impose the time limits for response by a public body. Any public body that is subject to this chapter and that is the custodian of the requested records shall promptly, but in all cases within five working days of receiving a request, provide the requested records to the requester or make one of the following responses in writing: and

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4. It is not practically possible to provide the requested records or to determine whether they are available within the five-workday period. Such response shall specify the conditions that make a response impossible. If the response is made within five working days, the public body shall have an additional seven work days in which to provide one of the four preceding responses. The Commissions choice to use the words timely and response render the Final Order erroneous and/or ambiguous or alternatively was the result of a clerical error because: 1. Nowhere in her findings did the Chief Hearing Examiner state that the information provided was considered a [t]imely response to the Christians request for records . as incorrectly asserted by the Commission in its Final Order. In fact, the Chief Hearing Examiner never used the words timely response together, in any context. To the contrary, the Chief Hearing Examiner found also erroneously only that the Clerks Office timely provided the requested information to Petitioner. 2. The Commission did not state under which statute, rule of law or practice it found that the information was considered a response. 3. The Commission did not state under which statute, rule of law or practice it found that the information was considered timely. 4. Notwithstanding that neither the Clerk, his office, nor the Respondents, ever provided a timely response to Christians requests for information as defined by the VFOIA nowhere in the Final Order is there any reference to or acknowledgement of these statutory provisions. 5. The issues of response and timely were not litigated. No evidence or argument was presented to the Commission that the 41

information the Respondents provided was considered a response or that is was timely pursuant to the VFOIA or otherwise. Therefore, the SCC should have corrected or alternatively clarified its Final Order to remove the erroneous reference to timely response because (1) the Chief Hearing Examiner did not state timely response in her report, (2) whether the respondents actions were timely or considered a response were issues not litigated, and (3) the words timely and response carry statutory meanings under the VFOIA that were not clarified, rendering the Final Order ambiguous. App 178-180. (b) The Clerks Office did not provide the records, the Clerk Did

Christian incorporates arguments and authorities contained in Paragraph L, item 3 as if set forth fully here. N. The SCC erred when it did not rule on or award Christian his costs as prescribed by the FOIA. (Errors 2, 5, 11, 12).

The evidence in this case is clear and uncontroverted. App. 157-158. The Clerk claims it received FOIA 1 and FOIA 2 from Christian in [their] office on May 18, 2009. App. 9. It is also undisputed the Clerk did not provide the requested records, or provide any of the other proper responses within five-work-day deadline as prescribed by the FOIA, in violations of Va. Code 2.2-3704(E) (Failure to respond to a request for records shall be

42

deemed a denial of the request and shall constitute a violation of this chapter.) In fact, no records were provided until July 9, 2010, well beyond time allotted by statute. App. 117. VFOIA 1 has still not been provided. Code 2.2-3704(B)(4) provides It is not practically possible to provide the requested records or to determine whether they are available within the five-work-day period. Such response shall specify the conditions that make a response impossible. If the response is made within five working days, the public body shall have an additional seven work days in which to provide one of the four preceding responses. The Respondents contention that the FOIA did not apply, and that the records requested in FOIA 1 and FOIA 2 were not readily available were not proper responses as defined by the FOIA. The SCCs naked assertion that the records were not readily available does not fulfill the requirements under this section. As defined by the statute, impossible is not synonymous with not readily available. The SCC did not specify the conditions that make a response impossible. Further, if this assertion were to be deemed a statutory response within 5 business days which Christian in no way concedes it was the SCC was required to provide the records or a follow on response within 7 working days. Code 2.2-3704(B)(4). It did not. Thus, their FOIA violation was justiciable. App. 157-158.

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1.

Christian was entitled to a ruling on his request for attorneys fees, costs, and other and further relief.

In a case directly on point, John H. Fenter v. Norfolk Airport Authority, Record No. 062563, Supreme Court of Virginia 274 Va. 524; 649 S.E.2d 704; 2007 Va. LEXIS 102, the Supreme Court found that Fenter was entitled to his costs, despite having ultimately been provided the record. App. 157-158. Here, as in Fenter, the Respondents failed to provide one of the four responses permitted by FOIA within five-work-days. The Respondents did not provide the requested records, did not deny Christians request pursuant to a recognized exemption, and did not invoke the additional seven working days to respond allowed under the FOIA. Thus, in regard to Christians request, the Respondents have failed to comply with the procedure for responding to requests as mandated by the FOIA. Until 1989, The Freedom of Information Act gave circuit judges nearly complete discretion in the awarding of attorneys fees and costs. Former Code 2.1-346 (1988) provided that if a violation of FOIA occurs, the court may award costs and reasonable attorney's fees to the petitioning citizen. (Emphasis added). The General Assembly amended the fees provision in 1989 to its present language, that the petitioner shall be entitled to recover reasonable costs and attorneys' fees from the public body if the petitioner substantially prevails on the merits of the case, unless 44

special circumstances would make an award unjust. Va. Code 2.2-3713. The General Assembly thus made clear its intent that prevailing petitioners should nearly always receive fees; denial of fees is the very rare exception. See RF & P Corp. v. Little, 440 S.E.2d 908, 247 Va. 309 (1994) (allowing $133,000 attorneys fee award to successful FOIA petitioner). In the present case, there can be no question that Christians request for costs and attorneys fees under 2.2-3713, general statutes, or common law is a live controversy that should have been resolved. Christian should have been afforded a full and fair opportunity to recoup his costs and be heard on his motion for attorneys fees and other relief. The facts of this case, when properly viewed and applied, plainly show the Respondents violated the FOIA, and there were no special circumstances to justify a denial of fees and costs. Nonetheless, the SCC simply ignored Christians request for fees and costs. App. 157-158. 2. Christian was entitled to a ruling on whether penalties should be assessed for Respondents willful and knowing violations of the FOIA.

The SCC did not consider the issue of assessing penalties against the Respondents. The statute requires the court to impose a fine of up to $1000 against a public body that willfully and knowingly violates the Freedom of Information Act. Code 2.2-3714. The General Assembly carefully crafted

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two separate standards for penalties, on the one hand, and attorneys fees and costs, on the other penalties. Attorneys fees and costs should almost always be awarded when the petitioner prevails. Given Christians allegation that the Respondents knowingly and willfully violated the FOIA, App. 2 (at 3(c)), and his pro se status, penalties should have been considered and assessed pursuant to Christians request for such other and further relief as is deemed just and proper. The point of a penalty is to punish a wrongdoer, but the point of attorneys fees is to encourage petitioners to bring meritorious suits under FOIA. The SCC ought to have reached a determination whether penalties should be assessed. 3. Cost and Fees should have been awarded under General Statutes

In Atlas, this Court narrowly found the venue provision of Code 2.23713 was unconstitutional as to the SCC, holding that the only proper venue was the Supreme Court. To the extent this Court finds any other provision of the VFOIA inapplicable as to the SCC regarding costs, fees or other relief, Christian is still entitled to his costs as the prevailing party under general statutes or common law, as his request for relief contained in his petition which was not specific to the FOIA, or in the alternative, under his request for such other and further relief. App. 1- 6.

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4.

Christian is entitled to attorneys fees.

Also, although Christian is not an attorney, he requested attorneys fees be awarded to him in the interests of justice, to compensate him for time and effort to bring this action which is in the public interests. App 5, 6. (at 26). Christian has invested hundreds of hours in this matter. As the issues ultimately to be settled in this case will necessarily affect the access rights of a far greater number of people than Christian, this Court should give due consideration to Christian for his efforts on behalf of himself, and in the capacity as private attorney general acting on behalf of those individuals whose interests in the records of the SCC are supplemental to those raised by Christian herein. O. The SCC erred when it denied Christians Verbal Motion To Introduce The Relevant Unanswered FOIA 1 Into Evidence. (Error 2, 5, 17).

Two written requests gave rise to this proceeding. App. 162-163. VFOIA 1 and VFOIA 2 were submitted concurrently on May 13, 2009. Respondents denied both requests in their combined reply dated May 22, 2009, claiming among other things that the basic employee information requested under FOIA 1 was inexplicably not readily available and that the SCC was not subject to the FOIA. App. 9. Christian referenced the denial of his requests in his combined follow up letter dated May 28, 2009. App. 10.

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The Chief Hearing Examiner requested Christian read his unanswered VFOIA 1 into the record, App. 100 (24-25) which he did, App 100-102, but his verbal motion to enter the document itself into evidence was taken under advisement. App 109 (22-24). In any event, the SCC should have received the unanswered VFOIA 1 physically because it was reasonably probative evidence necessary to satisfy the ends of justice. Christian should not have been penalized so harshly for his inadvertent omission of VFOIA 1, particularly given that (1) the Respondents were fully aware and intentionally failed to provide the public records requested in FOIA 1, (2) both requests were mentioned already in the record, App. 9, 100-102 and (3) the unanswered FOIA 1 was highly relevant and integral to the issue in litigation. Further, the Respondents misrepresentation to the Commission they had no opportunity to address that data request because it was only raised in oral argument ... when in fact the Respondents were fully aware of the unanswered FOIA 1 data request long before oral argument should not be rewarded with a favorable ruling that allows them to evade reckoning for their ongoing and unlawful conduct. App. 129 (fn. 74). Because it was considering a Motion to Dismiss, the SCC should have considered all filings, pleadings, and papers submitted. See, e.g.,

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Thorpe v. Dohman, No. Civ.A.04-CV-1099, 2004 WL 2397399, at *2, 2004 U.S. Dist. LEXIS 21495, at *5 (E.D.Pa. Oct. 22, 2004); Donhauser v. Goord, 314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004) ("In cases where a pro se plaintiff is faced with a motion to dismiss, it is appropriate for the court to consider materials outside of the complaint to the extent they 'are consistent with the allegations in the complaint'").Cited by Bush v. City of Philadelphia, 367 F. Supp. 2d 722, 2005 U.S. Dist. LEXIS 6076 (E.D. Pa. 2005). And, Christians oral motion to introduce the unanswered FOIA 1 into evidence was not for purposes of delay. To the contrary, permitting the evidence would have promoted judicial economy and an equitable outcome. App. 162-163. P. Future Proceedings Before the Commission Regarding Applicability of the FOIA Would be Futile.

Christian has exhausted his specific remedies before the SCC. The SCC denies the FOIA is applicable. In the interests of judicial economy, this Court should enter an order as to all the issues in this case. Alternatively, Christian requests this Court exercise its original jurisdiction and issue a writ of mandamus compelling the SCC to comport its conduct to the FOIA and to provide the public records requested pursuant to VFOIA 1. App. 167.

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VI.

CONCLUSION WHEREFORE, for the reasons stated, Christian respectfully requests

this Court conclude this matter and enter an order as follows: (a) the Respondents are subject to the FOIA, (b) the Respondents unlawfully denied the Petitioner the rights and privileges afforded by the FOIA, (c) the Respondents knowingly and willfully violated the FOIA, (d) granting a Permanent Injunction to permanently enjoin the Respondents from denying the rights and privileges afforded by the FOIA, (e) granting costs and attorneys fees, and (f) grant such other and further relief as deemed just and proper, including penalties pursuant to Code 2.2-3714. In the alternative, Christian respectfully requests this Court exercise its original jurisdiction and (a) issue a writ of mandamus compelling the SCC to provide records requested pursuant to VFOIA 1, and (b) to permanently enjoin the Respondents from denying the rights and privileges afforded by the FOIA. Finally, in the event a remand is deemed appropriate, Christian respectfully requests this Court enter an order (a) reinstating all the original Respondents, and (b) that the matter be heard by an unbiased tribunal.

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Respectfully submitted,

By:

/s/George H. Christian George H. Christian Pro Se Appellant 1317 Avonlea Court Chesapeake VA 23322 T (757) 652-5219 F (845) 698-3312

CERTIFICATE OF COMPLIANCE I hereby certify that that Rule 5A:19(f) has been complied with, and I do not desire to waive oral argument. This brief contains 10,967 words, excluding those portions of the brief exempted, and has been prepared in a proportionally spaced typeface using 14-point Times New Roman font.

By:

/s/George H. Christian George H. Christian

CERTIFICATE OF SERVICE I hereby certify that on ______ day of May, 2011, a true and correct copy of the foregoing brief was served on the parties by U.S. Mail, postage pre-paid

By:

/s/George H. Christian George H. Christian

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