Norfolk FOIA Fiasco

I love Norfolk. I first met this city in 1988 through a mutual friend, the US Navy. We soon discovered we had quite a bit in common. A love for our military and those that serve in it. A love for the arts. The desire to have a vibrant choice of nightlife offerings that showcase the diversity of contemporary urban American life. Norfolk had a great waterfront, Waterside, great neighbors with beaches, amusement parks and mountains, friends that shared a history of crucial moments in America's growing pains and joys, and many excellent opportunities to broaden one's horizons. I fell in love with this Norfolk. I can tell many of my friends, neighbors and elected leaders fell in love with this Norfolk too.

But this Norfolk also has another side to it. A side that does deals with the devil in dark shadows, and those that know about it either stand to benefit, or hope you don’t find out so they don’t have to get involved. This Norfolk is the one that you know exists, but you just can't bring yourself to admit it, because you almost never see it. “That’s not the Norfolk I know”, you tell yourself. But sometimes you think it, and when you do, you just explain it away with statements like 'who cares how the sausage is made?' and 'how else do you think we get all these nice things?'. You see, Norfolk likes to show off its niceties, but refuses to admit it has a problem with how those things are acquired. That problem is an insidious penchant for getting its way, at all costs. Even if that means lying to you. That’s the Norfolk that has a problem, and you stay in the relationship because you love it so much, even though it hurts you. At some point you must decide it's time for an intervention; you refuse to give up on this relationship.

I have taken the steps necessary to bring more of Norfolk’s problem to light. But how did I come to think Norfolk had a problem? Not the least of which is the recent debacle that resulted in the imprisonment of our city treasurer. And it was during that process that more of Norfolk’s bad habit was highlighted. The Virginian-Pilot ran a story on July 28, 2017 "Norfolk shreds records related to investigation into ex-Sheriff Bob McCabe" regarding the events pertaining to RFP 3642 (a 2010 request for proposals for the city jail's medical services contract). I read that story and my heart sank once again. Just when we thought the healing may begin, a fresh opening to a nasty, long-term wound. This story led me to believe that the City of Norfolk lied to the reporter via their response to an official Freedom of Information Act (FOIA) request. I decided to request the very same records the reporter requested, including the communications from the reporter that led to those records being delivered (and the basis of the reporter’s story). Maybe, just maybe, there was another way to look at this, and salvage the relationship before it got too ugly. But alas, once you start digging in the dirt, there is a good chance that those in high places would rather you not muddy the waters.

Here is the timeline of events from my requests, and the disappointing responses from a city in denial, or worse, outright deception. I’ll let you be the judge.

My first FOIA request:

FOIA Request 1

 

City of Norfolk July 31st Statement - (linked in my FOIA request):

Exhibit B.png

City of Norfolk response to my FOIA request asking for clarification... the day their response was due per state law:

Exhibit D.png

My response to the request for clarification, providing the timeline that was available in the Pilot story linked in my request:

Exhibit E.png

My email to City Council members, advising them of the City FOIA office response and my request they initiate an investigation:

Exhibit F.png

The only response from any member of City Council:

Exhibit G.png

FOIA Office attempts another delay tactic with feigned confusion:

Exhibit H.png

I respond with a simple reiteration of the original request WITH timeline, both in the same email:

Exhibit I.png

FOIA office attempts yet ANOTHER delay tactic on the second part of the request, this time seeking 'keywords' to help them identify the 'statement' the City made, even though I had already provided them the link (keywords not needed):

Exhibit J.png

My reponse to the keyword request, noting that the city moved the statement location (web address), so I provided the new address:

Exhibit K.png

City FOIA office now demands funds to process my request... at 5:51 p.m. on the deadline date:

Exhibit L.png

Page 1 of the letter claiming there are too many records to provide, and that either money will be required from me, or I can settle for whatever they can "do immediately and free of charge". (Note: It is my opinion that they should have provided whatever they could have immediately and free of charge in time to meet the deadline, and communicated the charges if I wanted anything above and beyond the free documentation):

Exhibit M.png

I accept the offer to receive whatever documents relating to RFP 3642 that can be delivered immediately and free of charge:

Exhibit N.png

On August 16, 2017 I received an envelope via United States Postal Service, postmarked August 14, 2017, containing a letter from the FOIA office and a compact disc. The contents of that disc is 53 digital documents files, 51 of them pertaining to a 2013 request for proposals for food service, (“RFP-4258”) and two files pertaining to the RFP subject to this FOIA request, RFP 3642. This delivery did not satisfy the request, as it did not contain records of email communications between the city and The Virginian-Pilot and was delivered nine days after the deadline, in violation of state law.

Envelope with postmark August 14, 2017

Exhibit O.jpeg

Letter accompanying CD, stating email communications were included (but they weren’t):

Exhibit O2.jpeg

List of files on CD received from FOIA office, two files from RFP 3642 highlighted; none of the files are images of email communications requested between City FOIA office and Eberly:

Exhibit P.png

 

This was very disappointing, as I feel I worked with the FOIA office extensively to help them identify what I was seeking, to include the email communications that were never delivered. My experience was starting to echo what the reporter was asserting, but I decided to give the City of Norfolk FOIA office another chance. I filed a whole new FOIA request, this time with very specific dates and timestamps. Quite simply, I was requesting the documentation and communications between the reporter and the FOIA office, the FBI and the FOIA office, and the documents delivered in response to those requests... again with exact dates and timestamps.

My NEW FOIA request dated August 18, 2017:

New FOIA request.png

I immediately followed that email with a request for receipt acknowledgement:

New FOIA response addendum.png

City FOIA office acknowledged the email request the next business day:

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City emails me one day after the deadline of the new request. Attached to the email is a digital letter dated the day of the deadline 'invoking' an extension of one more week, claiming it is "practically impossible" to provide the requested records or determine if they are available within five business days".

New FOIA response SH.png

Letter page 1:

New FOIA response SH invoke ltr pg1.png

Letter page 2:

New FOIA response SH invoke ltr pg2.png

A prudent and even basic review of this letter would leave even the most lenient observer with the following...

1.) How is it practically impossible to produce information the FBI just requested AND received via electronic storage device (thumb drive)... which was also sent to the reporter? Recall, this is an Active FBI investigation.

Moreover, I assert the following:

2.) The email would have needed to have been sent a day earlier to be in compliance with state law.

3.) The request for an extension after the deadline has passed is a violation of state law.

The next day I receive this from the City Attorney...

New FOIA response BP.png

Deputy City Attorney emails me and apologizes for the delay, admits a series of errors on the part of the 'Information Office' and admits the deadline was missed (recall, missing the deadline is a violation of state law, and it was just admitted), THEN rather than provide the documents immediately, grants the city an extension of an additional two days, albeit to be 'expedited'. Of course this looks very much like more delay tactics we saw on the first FOIA request, and already on this request. All of City Council was again included in the email:

New FOIA response JC.png

City Information Office emails me, and attached is another bill, should I choose to proceed, in order to get the requested documents:

V_New FOIA estimate email SH.png

Page 1 of the new 'invoice'.

W_New FOIA estimate pg1.png

Page 2 of 'Invoice Letter':

X_New FOIA estimate pg2.png

Per state law, I am entitled to VIEW the documents free of charge. The City violated the Freedom of Information Act, specifically § 2.2-3704 (F), by charging me for “transacting the general business of the public body” in both itemized charges which are not in the allowed activities of, “A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. No public body shall impose any extraneous, intermediary, or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body. Any duplicating fee charged by a public body shall not exceed the actual cost of duplication.”

 

I respond via email to the failed, delayed, inadequate response to my second FOIA request, and advise that I will seek legal relief from the circuit court to compel the documents be made available. I also, again, offer to forgo legal action if City Council will initiate an investigation:

New FOIA response TH.png

That was Tuesday, August 29, 2017. As of September 24, 2017 I have still not been offered the documents, nor have I heard from City Council.

Accountability demands that these behaviors be addressed.

I have prepared a Petition for Mandamus, and will deliver it to each member of City Council Tuesday September 27, 2017 and to the City Attorney. State law requires this simple delivery three days prior to filing with the court. City Council will have those three days to initiate an investigation before I proceed legally.

 

 

Date: 

Tuesday, September 26, 2017