Loudoun Now – by Ryan Donmoyer
Earlier this year, conservative activists swarmed Loudoun County School Board meetings to protest an array of policies.
Now they’re overwhelming the Loudoun County Public Schools Public Information office with Virginia Freedom of Information Act requests.
More than 500 VFOIA requests have been filed with the school division so far this year, compared to an average of about 90 annually between 2012 and 2018. About 40 percent of them have been filed by a half-dozen individuals who are members of or allied with Fight for Schools, which has led efforts to recall members of the School Board over the policies they have protested.
School division Public Information Officer Wayde Byard said the increase in VFOIA submissions prompted caused the school system to double the number of people who process the requests. “LCPS is not seeking further resources at this time but has begun billing VFIOA requesters because it cannot handle the current volume free of charge,” Byard said.
One of those bills made headlines in conservative media publications earlier this month. Byard told Loudoun County lawyer and mother Michelle Mege it would cost $36,000 to fulfill a broad VFOIA request to produce all school district documents mentioning sexual assault and rape.
Omitted from those media reports is that Mege filed at least 95 other VFOIA requests with the administration since March 8, or an average of nearly three per week, according to a log of all requests made in 2021. Those other requests include more narrow requests related to specific sexual assaults at Stone Bridge High School on May 28 and Broad Run High School on Oct. 6.
Other prolific and outspoken VFOIA requesters in 2021 include Scott Mineo, who runs the group Parents against Critical Race Theory; Ian Prior, executive director of Fight for Schools (for which Mege calls herself a “core volunteer”); Amy Jahr, a parent who criticized LCPS on the Fox News program “The Ingraham Angle”; Emily Emshwiller, whose comments scolding the board at its Oct. 25 meeting were quoted by The Washington Post; and Elicia Brand, spokeswoman for the family of Scott Smith, who was arrested this summer after his daughter was sexually assaulted at Stone Bridge High School.
Virginia FOIA laws place no limits on the number of requests an individual or entity can make, nor does it permit authorities to consider motivation for making them. The law does require requesters to pay any fees that are estimated within 30 days or the public body no longer has to fulfill the request.
The law gives governments wide latitude to deny requests for specific reasons and allows governments to charge requesters for the “actual cost” associated with locating and providing records.
The school division’s VFOIA deluge comes as the Virginia General Assembly prepares to reconvene in January. In that session, it may consider a bill sponsored by Del. Danica Roem (D-Manassas) that would caps the fees governments can charge to search for process requests at $33 per hour.
Roem said in an e-mail that as a trans-woman and former journalist, she has followed events in Loudoun County closely but the sharp increase in VFOIAs doesn’t change the need for her legislation, which she intends to refile when the General Assembly reconvenes in January.
“None of that changes the need for my bill,” said Roem, who described her legislation as a “good faith” effort to address the concerns of both VFOIA requesters and custodians of records. “The current system overwhelmingly defaults to the side of the custodians and I’m working to bring the pendulum to the center so we have actual balance,” Roem said.
Megan Rhyne, executive director of the Virginia Coalition for Open Government, said Roem’s legislation faces opposition from local governments and Virginia law enforcement agencies that fear it would encourage abuse of VFOIA laws, including harassment of under-resourced governments.
“It’s a complex issue,” Rhyne said. “You can’t just say harassment is sheer volume because there are things that happen in state and local government that are going to happen that have intense public interest and with that public interest will come an increase in VFOIA filings.”
The use of FOIA for fishing expeditions has long been a subject of controversy in Virginia and nationally. Some states including Illinois allow governments to sue citizens for vexatious use of FOIA. A decade-long effort to allow Virginia governments to do the same died in 2011 because no one could agree on what constituted harassment, Rhyne said.
Martin Crim, a Manassas attorney who represents local governments in FOIA matters, testified earlier this year that Roem’s legislation “presents an invitation for individuals angry at local government for any reason to harass the local government and to abuse the law out of spite … each locality I have worked for has had at least one FOIA antagonist at some point who filed multiple document requests for no practical purpose, so it cannot be said that the local governments must have done something to deserve such abuse.”
In Loudoun County, the vast majority of the 500-plus requests filed to date demand e-mails of board members and LCPS administrators on a range of topics that thrust the division into the national spotlight.They also seek a wide range of details about interactions with private individuals, including proponents of policies opposed by Fight for Schools aimed at improving racial equity in schools and supporting inclusion of transgender students.
A large number also sought records relating to former Leesburg District school board member Beth Bart’s participation in the anti-racist Parents of Loudoun CountyFacebook group earlier this year. Others sought records related to the suspension of Leesburg Elementary School Byron “Tanner” Cross after he announced his intention to refuse to comply with a new policy requiring teachers to address transgender students by their preferred pronouns.
Mineo has focused many of his requests seeking training programs his group believe are tantamount to training teachers about the tenets of critical race theory. He also filed several requests for correspondence from school officials that mention his name or that of his organization
“When people from the school board and others coordinate to come after me, my family, business and place of employment, I have a right to know who it was,” he said.
The district’s handling of the recent sexual assaults at Stone Bridge and Broad Run high schools by the same student perpetrator has triggered a new wave of requests in recent weeks.
Mege said the letter demanding $36,000 was given to conservative media outlets by Fight for Schools. She also said she often amends broader requests to make them more targeted. “I usually narrow down my request until it is less than $200 so it is free,” she said.
In the case of the VFOIA for Loudoun school records mentioning “sexual assault” or “rape,” for example, Mege filed subsequent requests for phone logs at Stone Bridge High School, any e-mails between Ziegler and board member Harris Mahedavi (Ashburn) that use the keywords, and any e-mails between Stone Bridge High School Timothy Flynn and any juvenile detention center between May 28 and October 21 (no such records existed, according to LCPS).
Mege and other LCPS critics are also filing myriad and repeated requests for records of other board members who have been targeted for recalls. They have also sought records of communications between schoool personnel and individuals working for many of the policies opposed by groups like Fight for Schools and Parents Against CRT.
“We have people and groups fishing for anything to justify, no matter how thin, a recall over policies,” said Todd Kaufman, a member with the group Loudoun for All, an adversary group of Fight for Schools.
When asked why she was seeking correspondence between policy adversaries and school officials, Mege replied, “This is relevant to understand policy advocacy in general.”
Rhyne said requesters’ motives don’t matter when it comes to the law. “Maybe that person does have an ideological agenda, but VFOIA shouldn’t care and government shouldn’t care,” she said.