VIRGINIA: IN THE GENERAL DISTRICT COURT OF THE COUNTY OF LOUDOUN In Re: JAMES PLOWMAN

Defendant.

) ) ) ) ) )

Case Number: ___________

COMPLAINT REGARDING DESTRUCTION OF RECORDS BY A PUBLIC OFFICER

COMES NOW Brian C. Davison (hereinafter “Mr. Davison”) and files this Complaint regarding Destruction of Records by a Public Officer against James Plowman. In support thereof, Mr. Davison states as follows: FACTS 1. Mr. Davison is a citizen of the Commonwealth of Virginia and has been a citizen during the events described herein.

2. Defendant James Plowman is the elected Attorney for the Commonwealth for Loudoun County, Virginia, and in that office serves as prosecutor of criminal offenses allegedly committed under the laws of the Commonwealth of Virginia in that jurisdiction. As other duties of that office, Mr. Plowman hires and supervises his staff and manages the operations of his office, including matters of publicity and public relations.

3. Defendant Plowman established and operated a social media page for the Loudoun County Commonwealth's Attorney Office (LCAO) on Facebook. (hereinafter the LCAO Facebook page). The LCAO Facebook page could be accessed as part of the “Official Loudoun County, VA Website.” Defendant Plowman has the authority and duty to supervise the content of the LCAO Facebook page. (Exhibit 1)

4. On the LCAO Facebook page, Defendant and his office posted articles discussing legal issues which Defendant considered to be of potential interest to the public. Defendant encouraged, solicited and allowed public comments and discussions on the LCAO Facebook page.

5. In Davison v. Plowman, 2016 U.S. Dist. LEXIS 74409 at 11-12, Defendant Plowman acknowledged during oral hearings that the LCAO Facebook page was a limited public forum and subject to free speech protections afforded by the First Amendment.

6. In December 2015, Defendant posted an article on the LCAO Facebook page on the subject of “Special Prosecutors.” (Exhibit 2) The article was more than an attempt to educate the public. A significant public controversy had arisen a few months earlier during the campaign for the November 2015 local elections when: a. A complaint regarding campaign reporting violations against the incumbent Chairman of the Board of Supervisors of Loudoun County, Scott York, filed by York's opponents was assigned to a special prosecutor and found to be frivolous prior to the election; and b. A complaint levied against the incumbent sheriff of Loudon County, Michael Chapman, by the sheriff's opponents regarding the public release of emails was assigned to a special prosecutor who also found the complaint unfounded.

7. On December 18, 2015, Davison posted on the LCAO Facebook page, in response to the article on special prosecutors, comments which were critical of the decision of Defendant and his office to refuse prosecution of Loudoun County Public Schools' officials for perjury in circuit court. Davison questioned why Defendant did not request a special prosecutor in that matter. (Exhibit 3) 2

8. Davison's comments on the LCAO Facebook page in response to the special prosecutor posts were in accordance with the rules of the “Social Media Policy” governing comments on the LCAO Facebook page. (Exhibit 4)

9. According to a Virginia State Police special agent, Davison's complaint of perjury was "legitimate" and well-documented. (Exhibit 5)

10. On or before December 28, 2015, Davison's comment on the LCAO Facebook page was deleted and removed from the website. The Defendant, via his discovery response in Davison v Plowman, admitted ordering the comments in Exhibit 3, as well as additional comments, made by Davison to be deleted. (Exhibit 1)

11. The Defendant caused one of Davison's comments to be restored on May 2, 2016, over two months after Davison filed a civil rights complaint against the Defendant in federal court. However, additional comments by Davison on the LCAO Facebook page have never been restored or produced by Defendant Plowman.

LEGAL RECITATION 12. Virginia Code § 18.2-472 provides that “If a clerk of any court or other public officer … destroy[s] any record, … in his keeping and belonging to his office, he shall be guilty of a Class 1 misdemeanor and shall forfeit his office and be forever incapable of holding any office of honor, profit or trust under the Constitution of Virginia."

13. Public records are defined in Virginia’s Freedom of Information Act (VFOIA), § 2.23701, as “all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording 3

or other form of data compilation, however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business”.

14. Pursuant to § 2.2-3702, all elected officers are to be furnished with copies of and become familiar with VFOIA within two weeks of being elected.

15. The Virginia Supreme Court has previously held that communications with public officials related to public business are included in the definition of public records. Hill v. Fairfax County Sch. Bd., 284 Va. 306, 310 (2012); Beck v. Shelton, 267 Va. 482, 490 (2004); Burton v. Mann, 74 Va. Cir. 471 (2008)

16. According to Policy N listed in the Loudoun County “INT-05: Use of Social Media Policy” (Exhibit 6, p6), “social media sites must be copied and archived at least monthly” to ensure compliance with records retention laws. The policy directs officials to include social media responses such as the ones made by Davison on the LCAO Facebook page. ANALYSIS 17. It is indisputable that Defendant Plowman directed Ms. Williamson to delete Davison’s comments related to the assignment of special prosecutors to criminal complaints in Loudoun County on the LCAO Facebook page. (Exhibits 1, 3) Furthermore, the deleted comments by Davison constituted public records.

18. In addition to violating Davison’s free speech protections under the First Amendment, the admitted deletion of the public records at Plowman’s direction constituted a prima facie violation of § 18.2-472.

4

19. The destruction of the public records was willful and intentional. (Exhibit 1)

20. The knowing destruction of public records is a Class 1 misdemeanor. Statute § 18.2472 states such conduct shall result in the forfeiture of office and permanently bar the official from ever holding any office under the Constitution of Virginia.

CONCLUSION WHEREFORE, Mr. Davison requests that this Honorable Court indict Defendant Plowman for violation of Virginia Statute § 18.2-472.

Respectfully Submitted,

___________________________ Brian C. Davison

STATE/COMMONWEALTH OF ________________________; CITY/COUNTY OF

, to wit:

Subscribed and sworn/affirmed before me this ______ day of ____________, 2016 by Brian C. Davison. __________________________________ Notary Public

My Commission expires: __________________

5