Received On 4l15/2020 By User: ynoe Circuit Court Clerk's Office Norfolk. VA George E. Schaefer, Clerk FOURTH JUDICIAL CIRCUIT OF VIRGINIA CIRCUIT COURT OF THE CITY NORFOLK Jumus P. FULTON I 150 ST. BOULEVARD JUDGE April 15? .2020 NORFOLK. VIRGINIA 2.3510 Conrad M. Shumadine, Esq. Wilcox Savage 440 Monticello Avenue, Suite 2200 Norfolk, Virginia 23510 Margaret Hoehl O?Shea, Esq. Assistant Attorney General Criminal Justice and Public Safety Division 202 North Ninth Street Richmond, Virginia 23219 Re: Gary Harki and The Virginian-Pilot Media Companies, LLC v. VDOC Case No.: CL20-2363 Dear Counsel: Today the Court rules on Gary Harki?s (?Harki?) petition for a writ of mandamus and injunctive relief against the Virginia Department of Corrections This court held a hearing on March 5, 2020, and after hearing. oral argument from counsel, took the matter under advisement to consider the evidence, argument, applicable statutes, and caselaw. The evidence re?ects that VDOC ultimately produced the documents responsive to Harki?s request after this suit was ?led. Consequently, the claims for relief sought by writ of mandamus and injunction are resolved. Nevertheless, this Court ?nds that VDOC VIOLATED Virginia?s Freedom of Information Act Virginia Code 2.2- 3700 et seq. by willfully and knowingly failing to provide Harki with the requested documents within the ?ve?day period prescribed by statute. Background In December 2019, Gary Harki wrote and published a series of articles for the Virginian- Pilot concerning policy of banning people of all ages from visiting their incarcerated loved ones if they did not consent to a strip search. (Pl.?s Hr?g Mem. 2.) The article was widely read, and the Generally Assembly subsequently passed legislation banning the strip searching of minors and placing limitations on the use of bans for adults. Hr?g Mem. 3.) RE: Gary Harki and The Virginian-Pilot Media Companies, LLC v. VDOC Page 2 of 14 On December 9, 2019, and prior to the FOIA requests at issue in this suit, Harki, an effort to investigate the issue further, submitted an initial FOIA request to VDOC. (Def.?s Dem. Ex. 4, at 8). He requested ?any database or other records? of: -1. Strip searches of visitors to Virginia prisons, including but- not limited to the reason for the strip search, name of the individual, and date of the search. 2. Visitors refusing strip searches, including but not limited to the name of the individual and date of the refusal. 3. Visitors banned from Department of Corrections facilities, including but not limited to the reason and length of the ban, as well as date it was enacted. 4. Records detailing the type, make, and number of body scanners at all state prisons and other facilities. 5. The data dictionary, database schema, or other log that outlines the databases and information requested above. Although the response to the December 9th FOIA request was delayed, it was due to reasons which are not subject to this dispute. Ultimately, on December 23, VDOC requested a seven-day extension to process and to respond to Harki?s December 9th OIA request after the conversation via phone. (Def.?s Dem.- Ex. 4, at 6.) On December 27, VDOC agreed to provide responsive records to OIA requests 1-4 of Harki?s December 9th request. (Def?s Dem. Ex. 4, at 5.) VDOC indicated, via a telephone conversation, that the records concerning OIA request 5 did not exist and could not be provided. (Def.?s Dem. Ex. 4, at 5.) On December 28, Harki again requested an answer to FOIA request 5 by narrowing the scope of his request to the VACORJS system only.1 Dem. Ex._4, at 5.) On January 2, 2020, he sent a follow up email concerning FOIA request 5. (Def.?s Dem. Ex. 4, at 3.) On January 3, McCord responded indicating that people would be returning from the holiday and would follow up with him (Def.?s Dem. Ex. 4, at 3.) On January 6, Harki, again, requested an update on FOIA request 5. (Def.?s Dem. Ex. 4, at 3.) On January 7, Dourafei responded to Harki with the reSponsive documents for OIA requests 1-4, but he provided no answer and no documents to FOIA request 5. (Def.?s Dem. Ex. 4, at 2.) On January 8, Harki sent another email seeking a His email states the following: ?As to item 5 my recollection is you said no such database exists, but i think the VACORIS data dictionary, database schema or other log that outlines the database information applies to the request and I?d like a copy of that." Email sent December 28, 209, 10:10 am. RB: Gary Harki and The Virginian-Pilot Media Companies, LLC v. VDOC Page 3 of 14 re5ponse to FOIA request 5. (Def.?s Dem. Ex. 4, at 1-2.) That same day, Dourafei responded that he had contacted the DOC Research Department to see if he could get that information from them. (Def?s Dem. Ex. 4, at 1.) On January 9, the FOIA department responded to Harki stating that the database schema is the intellectual property of Abilis Solutions, Inc., which created the CORIS system used for DOC offender records. (Def?s Demresult, it could not provide that information to Harki. (Def.?s Dem. Ex. 4, at 1.) It should be noted that shortly thereafter, Shumadine, Harki?s attorney, sought clari?cation of the basis for failure to provide any response to the request for ?data dictionary, database schema or other log that outlines the databases and information requested above.? (Def. Dem. Ex. 3) He was told that Harki was not allowed on the call, and that VDOC believed that Harki had abandoned request 5 of his FOIA request. (Pl.?s Hr? Mem, Ex. 8.) There is no dispute that the discussions at this time were centered around the VACORIS system created by Abilis and utilized by VDOC. On January 23, I-Iarki, in an attempt to access the same information implicated in the denied request 5 of his December 9, 2019 FOIA request, made the OIA request at issue in this suit. He listed seven separate requests stated below. 1. Documents sufficient to show the ?elds included in any computer program or information system monitoring visitor activity at correctional facilities. This is a separate request. To the extent you claim an exemption, we request that an exemption be stated separately for this request. 2. Communications with vendors or potential vendors of information systems describing the capabilities requested by the Department of-Corrections in its systems. This is a separate request. To the extent you claim an exemption, we request that an exemption be stated separately for this request. 3. Marketing materials or communications from vendors or potential vendors describing the capabilities of data processing programs being marketed to the Department of Corrections including the identi?cation of information that would be captured by such systems. This is a separate request. To the extent you claim an exemption, we request that an exemption be stated separately for this request. 2 See Def?s Exhibit 5: AffidaVit of Eric Le Goff, CEO of Abilis Solutions Corp, February 26, 2020, (stating that ?[A]ll the intellectual property related to the built and the usage of CORIS is the sole property Abilis and is protected under the law; and 5. Abilis is neither providing a CORIS data dictionary to its customers nor c0pies of its product screens, as those are both being part of its protected intellectual property, under copyright laws in Canada, and the United State of America and other countries.? RE: Gary Harki and The Virginian-Pilot Media Companies, LLC v. VDOC Page 4 of 14 4. Instructions advising users what information can be obtained on the Department?s information system(s) and how to obtain it. This is a separate request. To the extent you claim an exemption, we request that an exemption be stated separately for this request. I Reports evaluating data processing systems considered for purchase. This is a separate request. To the extent you claim an exemption, we request that an exemption be stated separately fer this request. . 6. All correspondence between the Department of Corrections and computer vendors concerning speci?cations for computer programs purchased or considered to be purchased by the Department of Corrections. This is a separate request. To the extent you claim an exemption, we request that an exemption be stated separately for this request. I 7.. All training materials describing for the Department of Corrections personnel how to use?the information systems and identifying what is available on the systems. This is a separate request. To the extent you claim an exemption, we request that an exemption be stated separately for this request. - (P135 Writ of Mandamus and Injunctive Relief Ex. 1.) On January 30, VDOC, via its Director of Administrative Compliance, Dean'W. Ricks,- VDOC responded to each of Harki?s seven requests stating: ?Pursuant to 2.2-3 of the Code of Virginia, ?a request for public records shall identify the requested record with reasonable Speci?city.? Therefore, your request for records is denied.? Writ of Mandamus and Injunctive Relief Ex. 2.) Rick?s email ended by stating that you would like to re?submit your FOIA requests with a narrowed scope and greater speci?city, we will be happy to try and accommodate your request for records.? (Pl.?s Writ of Mandamus and Injunctive Relief Ex. 2.) On February 17, Harki, through Shumadine, submitted a letter to VDOC with an attached draft of a writ 'of mandamus petition. (Deffs Dem. Ex. 1.) Thereafter, the parties engaged in two separate conference calls on February 12 and February 13. (Hr? Tr. 57: 11-17.) The conference calls'included'Ricks, Diane Abato, Ryan McCord, Zach Allen, Wayne Clarke, Yolanda Wyche (visitation manager), Shumadine, Harki, and the editor of the Virginian-Pilot. (Hr? Tr. 57:20? 24.) The evidence established that VDOC requested Harki narrow the scope of the requests. (Hr? Tr. 5812-5.) Ricks testi?ed that he believed that at the end of the February 13 conference call, Shumadine would submit a narrowed request which would be sent by letter to VDOC. (Hr?g Tr. VDOC received a letter from Shumadine on February 1'7 summarizing the history of the dispute starting with the request 5 which lay at the genesis of the: dispute. (Pl. Hr?g Mem, Ex.8) . . - - RE: Gary Harki and The Virginian-Pilot Media Companies, LLC v. VDOC Page 5 of 14 - Finding further discussions to be unavailing, on February 20, Harki, through his attorney, ?led the current writ of mandamus and injunction. After the lawsuit had been ?led, VDOC provided the supplemental response on February 25 six days after Shumadine?s February 17 letter. (Hr?g Tr. 60: They decided that they would draft a letter to him and ?attach some of the information that Harki talked about, the policies and visitation.? (Hr-?g Tr. 59: l~10.) On February 28, VDOC sent a second supplemental response to Harki, providing additional responsive material. Positions of the Parties Gary Harki?s Position Harki alleges that VDOC acted in bad faith by refusing to comply, with his FOIA request and asserting that his requests were not sufficiently speci?c. Mem: 6.) He argues that the, requests were clear, speci?c, and should have been easy to produce; (P133 Hr?g Mem. 3- 6.) Harki maintains that he requested ?the simplest document? that would provide, information on' the capacity and capability of its VACORIS system and the information available from the system. (Pl.?s Hr?g-Mem. 8.) He further asserts that rather than indicating any confusion regarding the nature of his request, VD OC refused to produce anything unless Harki narrowed the request. Hr? Mem. 8.) . Harki alleges that ?[t]he notion that the Department could provide nothing was a manifest example of bad faith.? Hr? Mem. 6.) Harki notes that the thousands of pages of supplemental response provided by VDOC after he refused to narrow his response demonstrate that VDOC knew from the initial December FOIA request what was requested but simply stonewalled, resulting in the current litigation. (Pl.?s Hr?g Mem. 7.) Harki emphasizes that: ?in conversations it was made clear to the Department that the information requested involved the capacity of the system to determine what information would be available to the public.? (Plfs Hr?g Mem. 8.) He asserts that he requested the database, because that?is something that other public agencies have provided to make it easier and less expensive for people to tailor future FOIA requests to public agencies. (Pl.?s Hr? Mem. 8.) It allows the public agency to clearly understand and process the request. (Pl.?s Hr?g Mem. 8.) He argues that ?if the Department can respond to simple, easily-understood requests saying they lack Speci?city and then refuse to produce anything until the request is narrowed, the Freedom of Information Act has no meaning? (Pl.?s Hr"g Mem. 7.) Although Harki admits that the requests are broad, he insists that they are not lacking in specificity; Hr?g Mem. 7.) Arguing that a newspaper should not have to 3 Apparently, Ricks, Allen, and Abato decided to draft a letter response to Shumadine on February 18'. (Hr?g Tr. 59; 1-10). I . - RE: Gary Harki and The Virginian-Pilot Media Companies, LLC v. VDOC Page 6 of 14 resort to expensive litigation to receive information that it is entitled to receive under FOIA. (Pl.?s Hr?g- Mem. 7.) He asks that this court ?nd that VDOC violated FOIA, and as the prevailing party, he is entitled to reasonable attorney?s fees in pursuing this case. (Pl.?s Hr?g Mem. 9.) The parties agree that if Harki prevails, the amount of costs and attorney fees will either be stipulated or a future hearing held. Position VDOC asserts tha ?[T]his case presents the novel question of whether, and to what extent, an agency is required to self-tailor vague and generally Overbroad FOIA requests that are served upon a public body, particularly where negotiations with the requester fail to yield any narrowng or clari?cation of the records sought.? (Def.?s Dem. 4.) Unlike Civil Discovery, is silent on; the ?obligation to substantively process a request that is so Vague and overbroad that the agency cannot even assess the potential volume of material encompassed by that request.? '(Deff-s Dem. 4.) Virginia Code states that a public body may request an extension to substantively respond to a request, but it cities not clarify whether the public body can invoke its provisions to challenge the format of the request in the first instance. (Deffs Dem. 4.) VDOC argues that when a FOIA request is so vague and overbroad that a public body cannot begin to process it, the public body complies with FOIA by communicating with the requester and attempting to narrow and clarify the documents sought. (Def.?s Dem. 4.) If the requester refuses to narrow the request, the agency has no obligation under go. any - further". (Def. 5s Dem. A FOIA request must be made with ?reasonable speci?city.? (Def.?s Dem. 5.) Harki?s requests Were not reasonably speci?c; therefore, VDOC complied with FOIA by sending one of thefo'ur required responses to request as detailed in Va. Code 2.2- (Def.?s Dem. 5.) VDOC cites to the FOIA Advisory Opinion 07-11 (Nov. 2011), which states that reasonable speci?city is ?speci?c enough to enable a public body to begin to process the request, and if clari?cation is required, to ask relevant questions-to understand the sc0pe ofthe request.? (Def.?s Dem. FOIA Advisory Opinion 03-08 (Mar. 19, 2008) explains that a request is not reasonably speci?c where it is ?vague and easily susceptible to multiple interpretations.? Dem. 6.) - Finally, VDOC argues that Federal case law states that a public agency does not have to respond to overly. bro ad requests. (Def.?s Dem. 6.) It is the requester?s responsibility to frame the request With reasonable speci?city. (De??s Dem. 7.) Advisory Opinion '09-1 8 (Oct. 23, 2018) states thatlthe public body needs to work to clarify any ambiguities in a request with clear and concise communication, but it has not discussed what one Ishould do if those' discussions fail. (Deffs Dem. 5.) - - - RE: Gary Harki and The Virginian-Pilot Media Companies, LLC v. VDOC Page 7 of 14 Analysis Legal Standard The-General Assembly enacted FOIA to give ?the people of the Commonwealth ready access to-public-records in the custody of a public body or its of?cers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted.? Va. Code. Ann. 22-3700. The statute emphasizes that ?the affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the bene?ciary of anyaction taken at any level of government.? Id. When interpreting the statute, the General Assembly noted that ?[t]he provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government.? Id. All exemptions listed in OIA are to be narrowly construed, and ?all public bodies and their of?cers and employees shall make reasonable efforts to reach an agreement with a requester concerning the production of the records requested.? Id. request for public records shall identify the requested records with reasonably speci?city.? Va. Code Ann. ?That requirement means that a request needs to be speci?c enough to enable a public body to begin to process the request and, if clari?cation is required, to ask relevant questions to understand the scope of the request.? FOIA Advisory Opinion 03?08 (Mar. 19, 2008). A request is deemed to fail the ?reasonable Speci?city requirement if ?it is vague and easily susceptible to multiple interpretations.? Id. After receiving such request, a public body must respond within ?ve days after receiving the request, or it must make one of the following responses: - 1. The requested records are being entirely withheld. Such response shall identify with reasonable particularity the volume and subject matter of withheld records, and cite, as to each category of withheld records, the speci?c Code section that authorizes the withholding of the records. 2. 'The requested?records?are being provided in part and are being withheld in part. Such reSponse 'shall identify with reasonable particularity-the I subject matter of withheld portions, and cite, as to each'category of withheld. records, the speci?c Code Section that authorizes the withholding of the records. 3. The requested records could not be found or do not exist. However, if the public body that received the request knows that another public body has the RE: Gary Harki and The Virginian-Pilot Media Companies, LLC v. VDOC Page 8 of 14 requested records, the response shall include contact information for the other public body. I 4. It is not practically possible to provide the requested records or to determine whether they are available within the ?ve?work-day period. Such response shall specify the conditions that make a response impossible. If the response is made within ?ve working days, the public body shall have an additional seven work days in which to provide one of the four preceding responses. Va. Code Ann. public body must respond to even vague FOIA requests within ?ve days, and a request for further speci?city does not toll the ?ve-day time limit within which the public body must provide one of [these] . . . statutorily required responses.? Hurst v. City of Norfolk, 97 'Va. Cir. 158, 2017 WL 9917196, at *8 (2017). A public body my request additional time to respond to a request only after engaging in reasonable efforts with a requester concerning the production of the requested information. Va. Code Ann. public body shall be required -to create a new record if the record does not already'eirist; However, a public body may abstract or summarize information" under such terms. and conditions as agreed between the requester and the public body.? Va. Code Ann. 2.2-3 704(1)). If a public body fails to respond to a request, this failure shall be deemed a violation of FOIA. Va. Code A court may award a civil penalty ?if it ?nds that a violation was willfully and knowingly made? by an employee of a public body. Va. Code Ann. 2.2- 371404). A plaintiff ?must prove the alleged violations of the Freedom of Information Act by the greater weight of the evidence.? Shenandoah Pub. House, Inc'v. The Winchester City Council, 37 Va. Cir. 149, 1995 1055895, at *2 (1995) (citing R. F. P. Corporation v. Little, 247 Va. 309, 440 908 (1994)). The ?court shall consider mitigating factors, I including reliance of members of the public body on opinions of the AttorneyGeneral, (ii) court cases substantially supporting the rationale of the public body, and published opinions of the Freedom of Information Advisory Council? when determining if civil penalties are apprOpriate. Va. Code Ann. If an employee of a public body is accused of committing a ?willful and knowing violation . . . [he] may introduce at any proceeding a copy of a relevant advisory opinion . . . as evidence that he did not willfully and knowingly'commit the violation if the . . . violation resulted from his good faith reliance on the advisory opinion.? Va. Code 2.2-3715. Courts have declined to extend civil penalties even when a public body violated FOIA when it was determined that the public body ?act[ed] in good faith with the advice of counsel,? holding that reliance on the erroneous advice of council demonstrated a lack of a ?knowing and willful violation.? Nageotte v. Bd. of Sup?rs of King George County, 223 Va. 259, 269, 288 423, 428 (1982). A plaintiff must demonstrate that more than the ?letter of the law? was violated - he must show that the ?spirit or the substance? of the law was violated. RE: Gary Harki and The Virginian?Pilot Media Companies, LLC v. VDOC Page 9 of 14 Shenandoah Pub. House, Inc. v. The Winchester City Council, 37 Va. Cir. 149, 1995 WL 1055895, at *4 (1995). Discussion A. Harki-?s FOIA Requests were Reasonably Specific To reiterate, FOIA was enacted to give ?the people of the Commonwealth ready access to public records in the custody of a public body or its of?cers and employees.? Va. Code Ann. 2.2-3 700. The statute emphasizes that ?the affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the bene?ciary of any action taken at any level of government.? Id. Harki wrote and published an article criticizing strip search policy, which has resulted in legislation changing the pelicy. (Pl.?s Hr?g Mem. 2 3.) After the publication of the article, Harki sent his December 9, 2019 FOIA request with ?ve different speci?cally bulleted requests. (Def.?s Dem. Ex. 4, at 8.) Until the beginning of January,.Harki and VDOC engaged in discussions concerning his December 9th request, attempting to provide the appr0priate responsive documents. (Def.?s Dem. Ex. 4.) Although there was some delay 'due' to" the holidays and technical dif?culties, Harki received responsive documents to the ?rst four bullets in his December 9 Request on January 7, 2020. Dem. Ex. 4, at 2.) However, VDOC did not provide the information reSponsive to bullet ?ve' of his request, Speci?cally the data dictionary and database schema. (Def?s Dem. Ex. 4, at 1.) Harki stated in a previous email that althoughVDOC took the position that a ?data dictionary, database schema, or other lo that outlines the database-and information? requested in? the ?rst fourbullets did not exist, he would be happy to receive one for the VACORIS system only. (Def?s Dem; Ex. 4, at 5.) This clearly shows that he wanted a general log of the information and capabilities of the VACORIS system a clear, narrow, and speci?c request. (De?s Dem. Ex. 4, at 5.) On January 9, 2020,.he received an email stating that this information was the intellectual property of 'Abilis Solutions, Inc. and could not be produced. (Def.?s Dem. Ex. 4, at 1.) Consequently, he sent the supplemental request on January-23, 2020, which attempted to detail the information that he was seeking, which would not be considered the intellectual property of Abilisj rather; it should be general information that VDOC would possess. Writ of Mandamus and Injunctive Relief Ex. 1). i I When interpreting the statute, the General Assembly noted provisions of this chapter shall be liberally construed to promote an'increasea' awareness by all persons of governmental activities and a?bral every Opportunity to citieens to Witness the operations of government.? Va. Code Ann. 2.2;3700 (emphasis added); All'exemptions listed in to be narrowly construed, and ?all public bodies and their of?cers and employees shall make RE: Gary Harki and The Virginian-Pilot Media Companies, LLC v. VDOC Page 10 of 14 reasonable efforts to reach an agreement with a requester concerning the production of the records requested.? Va. Code Ann. 2.2?3700 (emphasis added): As stated above, Harki made several attempts to clarify the information that he was seeking from the VDOC from December until January. (Deffs Dem. Ex. 4; Pl.?s Writ of Mandamus and Injunctive Relief Ex. 1.) On January 30, -VDOC, via its-Director of Administrative Compliance, Dean'W. Ricks, responded to each of Harki?s seven requests stating: ?Pursuant to of the Code of Virginia, ?a request for public records shall identify the requested record with reasonable speci?city.? Therefore, your request for records is denied.? Writ of Mandamus and Injunctive Relief Ex. 2.) Ricks? email ended by stating that you would like to re-subrn'it your 01A requests with a narrowed scope and greater speci?city we will be happy to try and accommodate your request for records.? Writ of Mandamus and Injunctive Relief Ex. 2.) In light of the many emails and telephone conversations between VDOC and Harki in December and January, the January 23rd FOIA request is reasonably The reguirement for reasonable speci?city means that a request must be ?speci?c enough to enable'a'public body to begin to process the'request.? FOIA Advisory Opinion 03?08 (Mar. 19, 2008). Given the velum'e of emails and number of phone calls from December to January, capable of I piocessing the request. Dem. Ex. .4.) Attempting to state otherwise is disingenuous. It should be further noted that Ricks?s response is not one of-th'e' approved responses to a OIA Request as prescribed by Va. Code Ann. lmportantly, ?a public b'o'dy?r'nust?: respond to even vaigue FOIA requests within five days, and a request for further Speci?city does not toll the ?ve-day time limit within which the public body must provide one of [these] . . . 4 After receiving a EOIA request, Va. Code Ann. 2.2-3 requires a-public body to respond within ?ve days after receiving the request, stating one of the following responses: LThe requested records are being entirely withheld. Such response shall identify ?with reasonable particularity the volume and subject matter of withheld records, and cite, as to each category of withheld records, the speci?c Code Section that authorizes the withholding of the records. . - 2. The requested records are being provided in part and are being withheld? in part. Such response shall identify with reasonable particularity the subject matter of withheld-portiCins, and cite, asito each category of withheld records, the speci?c Code Section that authorizes the withholding of the records. 1 3. The requested records could not be found or do not exist. However, if the public body that received the request knows that another public body has the requested records, the response shall include contact information forthe other public body. . . 4. It is not practically possible to provide the requested records 'or to determine whether they are available 1 within the five?work-day period. Such response shall specify the conditions that make a response impossible. If the responsc is made within ?ve working days, the public body shall have an additional seven work days in which to provide one of the four preceding responses. RE: Gary Harki and The Virginian?Pilot Media Companies, LLC v. VDOC Page 11 of 14 statutorily required responses.? Hurst v. City of Norfolk, 97 Va. Cir. 158, 2017 WL 9917196, at *8 (2017). A public body may request additional time to respond to a request only after engaging in reasonable efforts with a requester concerning the production of the requested information. Va. Code Ann. Not only did VDOC not engage in ?reasonable efforts? with Harki to ascertain the information requested, VDOC did not request additional time to produce the documents. See Va. Code Ann. Furthermore, VDOC did not provide a statutorily required response under Va. Code Ann. When a public body denies a FOIA request, it must ?identify with reasonable particularity the volume and subject matter of withheld records, and cite, as to each category of withheld records, the speci?c Code section that authorizes the withholding of the records.? Va. Code Ann. VDOC failed to follow any of these requirements in the statute. Finally, even if VDOC had made ?a request for further speci?city? that would not have tolled the ?ve-day time limit. Hurst v. City of Norfolk, 97 Va. Cir. 158, 2017 WL 9917196, at *8 (2017). By failing to produce a statutorily prescribed response with the ?ve working day period, VDOC is in violation of FOIA. Va. Code Ann. 2.2 B. Harki Substantially Prevails on the Merits, because VDOC Wiilfully and Knowingly Violated 01A The Court ?nds that VDOC acted in bad faith by refusing to provide Harki'with the requested records from December until February. In a FOIA violation single instance of denial of the rights and privileges conferred by this chapter shall be suf?cient to invoke the remedies granted herein.? Va. Code Ann. A FOIA violation is considered ??willful? when it is intentional, and the term ?knowingly? imports knowledge of the essential acts from which the law presumes knowledge of legal consequences arising therefrom.? RF Corp. 11, Little, 247 Va. 309, 320, 440 908, 915 (1994). If the petitioner substantially prevails on the merits of the case, he is ?entitled to recover reasonable costs, including costs and reasonable fees for expert witnesses, and attorney fees from the public body.? Va. Code Ann. When determining if a petitioner ?substantially prevails on the merits? of his case, ?a court may consider, among other things, the reliance of a public body on an opinion of the Attorney General or a decision of a court that substantially supports the public body's position." Va. Code Ann. 'ln Hurst v. City of Norfolk, a reporter submitted two FOIA requests to the City seeking information about an investigation by the Virginian-Pilot. Hurst v. City of Norfolk, 97 Va. Cir. 158, 2017 WL 9917196, at *1 (2017). There were extensive discussions between Hurst and the City about the contents of his request, and although several days late, the City produced RE: Gary Harki and The Virginian-Pilot Media Companies, LLC v. VDOC Page 12 of 14 . responsive documents. Hurst v. City of Norfolk, 97 Va. Cir. 158, 2017 WL 9917196, at *2 (2017). The court held that although the response was produced late, it appeared that the City ?did not intentionally delay producing responsive documents or otherwise act in bad faith,? and since the City produced the responsive documents, there was no injury. Hurst v. City of Norfolk, 97 Va. Cir. 158, 2017 WL 9917196, at *12 (2017). The court considered the extensive discussions between the reporter and the city and the production of the responsive documents to the ?rst FOIA request as evidence of good faith. Id. The City produced the ?rst FOIA request documents and agreed to produce the documents for the Second FOIA request prior to the ?ling of the lawsuit, demonstrating a good faith effort to comply with OIA. Id. Therefore, the court . refused to award a civil penalty or attorney?s fees. Id. . Although the facts in Hurst are similar to the case at bar, there are several key differences. As in Hurst, Harki submitted two OIA requests. By December 28, 2019, Harki received responsive documents for four of the ?ve requests in his ?rst FOIA request. (Def.?s Dem. Ex. 4, at 2.) Harki attempted to clarify and narrow his ?fth request in the ?rst FOIA request, but he was ultimately told that although VDOC understood his request, it did not own the information requested. (Def.?s Dem. Ex. 4, at 1-2.) Thereafter, Shumadine contacted VDOC to discuss the request and try and resolve the matter. Hr? Mem. Ex. 8, at In Hurst, the plaintiff was' able to continue discussions with the City without the need for an attorney. Hurst v. City ofNorfolk, 97 Va. Cir. 158, 2017 WL 9917196, at *1-2 (2017). VDOC refused to allow Harki on the call and would only speak with Shumadine. Hr? Mem. Ex. 8, at 1.) Conversely, although the plaintiff in Hurst threatened a lawsuit, he was always able to speak directly with the City and City Council members regarding his concerns about transparency. Hurst v. City of Norfolk, 97'Va. Cir. 158, 2017 WL 9917196, at *1-2 (2017). The City properly requested an extension of time for responding when it could not fully understand the plaintiffs request. Id. When Shumadine asked about the ?fth request, he was told that Harki had narrowed and abandoned the request. Mem. Ex. 8, at 1.) However, there is no evidence supporting the assertion that Harki ever intended to abandon his initial request, nor does the correspondence between the parties indicate an abandonment of the request. (Pl. ?3 Hr?g Mem.- Ex. 8, at 1-2.) This behavior is markedly different from the City in Hurst. Although there were issues in determining the exact documents requested, communication was open, proper statutory extensions were requested, the City never refused to speak with the plaintiff,- requiring representation by an attorney, and the City never insinuated that the plaintiff abandoned his FOIA requests when it appeared too broad. Delays occurred, but they were due to good faith attempts to answer the FQIA request and cut the cost of production rather than reluctance towards production of the documents. behavior towards the second FOIA request further supports the conclusion that VDOC acted in bad faith. Shumadine?s second letter of February 17, 2020, presented another RE: Gary Harki and The Virginian-Pilot Media Companies, LLC v. VDOC Page 13 of 14 attempt to reiterate the documents requested. (Pl.?s Hr?g Mem. Ex. 8, at 2.) That second letter, sent after the second denial and after participating in a second and third round of conference calls, clearly stated Harki?s request: ?We request the ?elds and de?nitions of the field for all modules of the Department of Corrections? VACORIS database.? Hr? Mem. Ex. 8, at 1.) Harki refused-to narrow the request due to the behavior of VDOC but stated that he would ?accept the simplest and cheapest and easiest to understand document that describes what we are looking for.? Hr?g Mem. Ex. 8, at 2.) Throughout this three-month process, Harki attempted to work with VDOC, so that the request would be clear enough for VDOC to understand and produce. At the hearing, Ricks testi?ed that VDOC did not need Harki to clarify his request; rather, they wanted him ?to narrow the request.? (Hr?g Tr. AlthOugh VDOC claims it did not understand and could not process Harki?s request, Harki?s testimony, emails, and letters repeatedly stated that he would ?accept the simplest, shortest thing that would satisfy the request? for information regarding the VACORIS system only. (Hr? Tr. 63: 8?11.) Given the context of Harki?s FOIA requests, Ricks? testimony that he believed Harki?s second FOIA reque'st ?asked for every system? controlled by VDOC making it impossible for VDOC to begin to process the request, is dif?cult to believe. (Hr? Tr. By January, Harki individually and through his attorney, had repeatedly said he wanted the information about the VACORIS system?s capabilities. For a plaintiff to prevail in a FOIA suit, he must demonstrate that both the letter and the Spirit of the law was violated. Shenandoah Pub. House, Inc. v. The Winchester City Council, 37 - Va. Cir. 149, 1995 WL 1055895, at *4 (1995). VDOC failed to produce the requested documents to Harki within the statutory period, and it acted in bad faith by refusing to answer his request. Harki only received the thousands of reSponsive documents after retaining a lawyer to advocate for both of his FOIA requests. (Pl.?s Hr? Mem. Ex. 8.) Although VDOC cites to various Virginia FOIA Advisory Council Opinions, claiming to rely on them in? good faith, the history of this case evidenced through emails, letters, and testimony showcase attempts to stonewall Harki and to?refuse to relinquish the documents. FOIA was enacted to give citizens of the Commonwealth access to public records and to ensure that ?the affairs of the government? are not conducted in secrecy. Va. Code Ann. 22-3700. VDOC willfully and knowingly violated FOIA by its repeated attempts to refuse to comply and insist that he narrow his request. actions violated both the letter and spirit of FOIA. See Shenandoah Pub. House, Inc. v. The Winchester: City Council, 37 Va. Cir. 149, 1995 WL 1055895, at *4 (1995). Therefore, Harki substantially prevails on the merits of his case, and this Court ?nds VDOC in violation of OIA. RE: Gary Harki and The Virginian-Pilot Media Companies, LLC v. VDOC Page 14 of 14 Conclusion Given the context of the two separate FOIA requests and clarifying discussions between Harki, his attorney, and VDOC from December until suit was ?led, Harki?s January FOIA request was reasonably speci?c and not vague requiring ?self-tailoring? by .VDOC. VDOC should have responded accordingly before suit was ?led. failure to prOperly process the request, properly deny the request, failure to properly request for more time, violated both the letter and spirit of FOIA. Consequently, I ?nd that VDOC VIOLATED FOIA by failing to timely reply to Harki?s request. Mr. Shumadine will prepare an order consistent with the foregoing. Sincerely, Junius P. Fulton, Judge April 15, 2020 Junius P. Fulton, Circuit Court Judge GG/rns