‘Working papers’ exemption claimed to shield governor’s calendar amid pipeline permit uproar

Last week, environmental activists circulated a video of Dominion Energy CEO Tom Farrell leaving Gov. Ralph Northam’s office.

The timing raised eyebrows, coming on the heels of Northam’s much criticized decision to replace two members of the State Air Pollution Control Board, which was due to vote on a key permit for Dominion’s Atlantic Coast Pipeline.

The terms of Rebecca Rubin and Sam Bleicher, who Northam replaced, expired in June. They also had both voiced concerns about the permit at an earlier air board meeting.

Bleicher initially referred a Mercury reporter to the governor’s office, but wasn’t as shy on Facebook a few days later, writing that “all indications are that I was removed because I sounded like I might vote against the Dominion Energy permit.”

Asked last week by the Mercury about the meeting, Northam’s spokeswoman, Ofirah Yheskel, said the governor’s calendar falls under the working papers exemption of Virginia’s Freedom of Information Act and wouldn’t be released. She did not respond to a question seeking details of the meeting. 

However, Yheskel later confirmed to the Richmond Times-Dispatch that Virginia Department of Environmental Quality Director David Paylor, Dominion Executive Vice President Diane Leopold, head of the company’s gas infrastructure group, and others were in the meeting, though both Yheskel and a Dominion spokeswoman said the air board was not discussed.

The meeting originally had been scheduled for Nov. 8 but was rescheduled to Nov. 19, Yheskel told the paper, adding that it was about “an upcoming initiative Dominion would be announcing.”

However, if Farrell hadn’t been spotted coming out of building, the meeting easily could have remained out of the public eye.

Wild Virginia, a Charlottesville-based environmental nonprofit, filed two FOIA requests last week with the governor’s office seeking information about the meeting with Farrell and more information about the former board members’ removal.

The organization’s conservation director, David Sligh, said it seemed reasonable to think the pipeline was a topic of conversation.

“They have the opportunity here to be open,” Sligh said last week. “If the meeting had nothing to do with pipelines … then they can show everybody that.”

Wild Virginia anticipated the state might respond with the working papers exemption, and asked that the information be released anyway.

“As you know, important and controversial issues pertaining to state regulation of Dominion proposals or activities are of utmost interest to many thousands of Virginians,” Sligh wrote.  “Gov. Northam has repeatedly promised that regulatory processes will be fully transparent and fair. Concealment of the information requested in this letter will not be consistent with those promises.”

Virginia’s working papers exemption allows a slew of elected and appointed leaders — including the governor and his cabinet the lieutenant governor, the attorney general, members of the General Assembly, the clerks of the House of Delegates and the Senate, among others  — to withhold documents for their “personal or deliberative use.”

The exemption is meant to protect information an official might need to make decisions, said Megan Rhyne, executive director of the Virginia Coalition for Open Government and an occasional guest columnist for the Virginia Mercury.

“Just because he’s doing state business doesn’t mean the public gets to see it,” Rhyne said. “On one hand you might want to see to see who may be influencing the executive, on the other hand, you want the executive to have a free flow of information so he or she can make the best decisions.”

Virginia’s working papers exemption is similar to executive privilege on the federal level, and many other states have similar protections, either through legal precedent or common law, Rhyne said.

There is debate over whether a calendar should be considered a working paper, since it could — but may not — include information about state business, said Alan Gernhardt, executive director of the state’s FOIA Council.

Tim Kaine was one of the first governors to use the working papers exemption to prevent the release of his calendar, Gernhardt and Rhyne recalled. Kaine was in the process of becoming chairman of the Democratic National Committee, and there were several requests for his calendar.

Kaine invoked the working papers exemption at first, but did eventually release the information, Gernhardt said.

Northam releases a public schedule of some events. But he could keep several different calendars, such as one that, for example, includes personal entries like a doctor’s appointments or familial obligations, Gernhardt said. Those things wouldn’t be subject to FOIA.

And there could be things on his calendar that fall under other exemptions, like economic development.

“The only way to know for sure is to sue him,” Gernhardt said.

Sligh thinks there is a better way to get the information.

“The exemption can be waived in almost all circumstances and so we just tend to say …  just because you can withhold it doesn’t mean you should,” he said. “And you really should always be thinking of the reason of the law itself, which very clearly says you’re supposed to err on the side of disclosure.”