By Sarah Vogelsong, Virginia Mercury
A local judge ordered the Richmond School Board to let him review a copy of a disputed third-party report on a June 2023 shooting outside a high school graduation ceremony as part of his deliberations on whether it should be released to the public.
After nearly eight hours of testimony Friday, Richmond Judge W. Reilly Marchant said he would issue a written opinion in the case “no later” than next Thursday.
The closely watched Freedom of Information Act lawsuit playing out in Richmond is centered on the question of whether government bodies can keep investigative reports secret if they hire outside law firms to produce them. The state’s transparency laws include exemptions allowing public bodies to get confidential legal advice, but that exemption is limited to clearly defined legal matters and doesn’t automatically apply to every government action involving lawyers.
The June 6 shooting in Richmond, which occurred outside Huguenot High School’s graduation ceremony at the Altria Theater, left two dead, five wounded and at least a dozen others injured in the chaos that followed. In its aftermath, Superintendent Jason Kamras’ administration produced an internal report on the events of the day, but a majority of the Richmond School Board voted to commission an external report, with some members citing concerns about the internal document’s accuracy and completeness.
The Richmond School Board hired law firm Sands Anderson to produce the report, which was revealed to members on Nov. 6 in a closed session. Board members were not permitted to keep copies of the report, but member Jonathan Young later told news station WTVR that it was “damning.”
After the board refused to release the report, citing an exemption in Virginia’s Freedom of Information Act for “attorney-client privilege,” the Richmond Times-Dispatch, WTVR and transparency activist Josh Stanfield filed lawsuits to compel the division to make the document public.
In court Friday, the petitioners argued that the report commissioned by the School Board was “a fact-finding mission” intended only to establish what had happened on and in the leadup to June 6 rather than a document focused on legal advice concerning issues such as division liability. Attorneys David Lacy and Brett Spain noted numerous board members had during public meetings emphasized a need for transparency and the board had rejected a proposal to include legal advice in the scope of the report.
“They wanted a complete and factually accurate report about what happened. And they wanted transparency and accountability,” said Spain. “If the intent of this was to do a privileged investigation … they wouldn’t have been talking about transparency.”
Because the primary purpose of the report was not for the board to obtain legal advice, the attorneys contended, it could not rightfully be withheld under the attorney-client privilege exemption.
Attorneys and witnesses for the Richmond School Board made the case that because the investigation delved into sensitive topics like student records, personnel matters and potential legal liability, there was an assumption that the entire process would be kept confidential.
Pamela O’Berry, a Sands Anderson attorney who led the investigation, said her team’s interviews with Richmond Public Schools employees had to be kept confidential in order to convince them to participate in the investigation and “trust the process.”
“We knew that documents would not give us all of the information,” O’Berry said. “We knew that interviews would be key.”
O’Berry said she didn’t have subpoena power to compel participation by school employees, and division leadership didn’t authorize her to warn employees they could be disciplined for refusing to help with the investigation.
“Mr. Kamras said no, we don’t want people to feel intimidated,” O’Berry said.
Even though the School Board may not have clearly spelled out it was primarily concerned with legal issues, O’Berry said the fact that a young graduate and his father had died at a school-sponsored event was “a flashing red light” that would be obvious to any lawyer.
Both O’Berry and Kamras testified that there was some closed-door discussion about creating an executive summary of the investigation’s findings that could be released to the public. No such summary was created, they said.
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