Redactions to watchdog report on Va. Parole Board came after governor’s office got notice of FOIA requests

By: - November 23, 2020 12:02 am

The Virginia Office of the State Inspector General refused to release details of an investigation into the Virginia Parole Board in 2020. Documents provided to the Mercury were almost entirely redacted. The investigator who later leaked documents was fired.

In late July, employees in Virginia’s Office of the Inspector General were preparing to release what they seemed to think was an important report on alleged misconduct by the Virginia Parole Board.

On July 23, Inspector General Michael Westfall emailed a staffer saying the report was “ready for issuance.” It concluded the board had violated state law and its own victim-notification procedures while granting parole to an inmate convicted of killing a Richmond police officer in 1979.

“Please make this your top priority,” Westfall wrote in an email chain with an earlier subject line that read: “VPB READY!!!”

But before releasing the report, records show the inspector general’s office (OSIG) sent Gov. Ralph Northam’s administration an advance notice that the document would be distributed “on or about” July 24 to journalists who had requested it under the Freedom of Information Act.

The email appeared to set off a chain of events that would delay the report’s release and end with the redaction of nearly everything in it, according to emails the Virginia Mercury obtained through public records requests.

The correspondence reveals members of Northam’s administration, who publicly stated they wanted more transparency in the matter, were working closely behind the scenes with the Parole Board as it sought to ensure most of the information would be withheld from public view. It also shows Northam’s administration helped craft the board’s formal response casting doubt on the veracity of the inspector general’s findings.

The records highlight the jumbled lines of authority between the governor’s office that runs state government, the watchdog agency that’s supposed to investigate state government while reporting to the governor’s office, and an attorney general’s office that works to protect government interests while offering legal advice on how much of the government’s inner workings should be made public.

Republican General Assembly leaders contend that the Parole Board disregarded its duties to seek out and consider dissenting opinions on whether parole is warranted in a push to release more inmates. And they’ve accused the administration of attempting to cover up the critical report and several subsequent reports on the Parole Board that have not been released to them or the media without redactions. They’ve also questioned whether OSIG was acting as a truly independent watchdog or if the office bowed to outside pressure to prevent unflattering information from becoming public.

The Northam administration has said any missteps by the Parole Board were minor procedural issues that can be easily corrected, not substantive problems with parole decisions. Democratic leaders have made criminal justice reform a priority this year, and the administration has pushed to expedite the release of some elderly inmates due to the COVID-19 pandemic.

The secrecy surrounding OSIG’s investigative reports has made it difficult to determine whose version is closer to the truth.

At a news conference shortly after the first redacted report was released, Secretary of Public Safety Brian Moran and Northam’s Chief of Staff Clark Mercer insisted they wanted more people to see its contents.

“We are working with the lawyers to see if we cannot release much of the information,” Moran said on Aug. 5.

The emails paint a more complex picture. Moran’s office was in communication with Parole Board Chairwoman Tonya Chapman about half an hour before she sent OSIG an email claiming information the board had provided for the report was exempt from FOIA. That interpretation has been disputed by FOIA experts who say the watchdog report is a separate record that doesn’t fall under laws dealing with Parole Board records.

The full extent of the Northam administration’s role in the report’s preparation and release is unknown. Both OSIG and the governor’s office redacted the contents of several emails before providing them to the Mercury.

The governor’s office also refused to disclose 37 documents altogether, saying they could be kept confidential under public-records exemptions for the governor’s working papers, attorney-client privilege and protections for records belonging to the Parole Board and OSIG. An attorney in Northam’s office would only say the withheld records “relate to correspondence between cabinet members, executive staff and agencies regarding the OSIG report and response.” All those communications took place in the days leading up to the release of the redacted report.

‘It confirms suspicions’

Republican leaders ultimately released an unredacted copy of the report themselves after pointing out state law gives them a right to review the inspector general’s findings. Last month, GOP leaders threatened to sue the inspector general to force him to turn over unredacted copies of the other reports, saying Westfall’s refusal to provide them “undermines his credibility and damages the independence of his office.”

In an interview, House Minority Leader Todd Gilbert, R-Shenandoah, called the behind-the-scenes “collusion” over the initial report’s release “extremely troubling.”

“It confirms suspicions that we’ve had all along that the inspector general has chosen coordination over independence and is essentially running cover for agencies that it’s supposed to be investigating,” Gilbert said.

The inspector general’s office declined to make Westfall available for an interview. The agency, which has described itself as “a watchdog for the citizens of Virginia,” declined to answer several follow-up questions.

Moran disputed the idea that his office was involved in the decision to heavily redact the report, saying he and his staff didn’t know what redactions would be made.

“The Parole Board communicated to us that they had received advice from counsel not to waive their FOIA exemptions,” Moran said. “And we did not overrule that advice.”

At the time, Moran refused reporters’ requests to provide an unredacted copy of the report himself.

In an email, Chapman said the Parole Board insisted on exercising its FOIA exemptions on the advice of Attorney General Mark Herring’s office, guidance she said Moran’s office “concurred with.” She said the board did not attempt to dictate to OSIG what should be redacted.

OSIG could have left the non-exempt information in the report, but decided to redact and release the entire report,” Chapman said.

The attorney general’s office declined to comment on the specifics of its guidance on the Parole Board report, but noted its legal advice is just advice.

“Our office may advise a client from time to time on what things can be redacted but whether to redact and what a FOIA response looks like is ultimately the agency’s decision,” said Herring spokeswoman Charlotte Gomer.

The Office of the Inspector General was established in 2012 with a mission to investigate fraud, waste and corruption within Executive Branch agencies. As a gubernatorial appointee, the inspector general reports to the governor’s office.

An OSIG spokeswoman said its advance notices about pending FOIA releases are a courtesy extended to all agencies and a policy “implemented several years ago.”

Megan Rhyne, executive director of the Virginia Coalition for Open Government, said it’s not particularly unusual for an agency to give another interested party a heads up before releasing records under FOIA. She noted that a similar provision was built into the state’s deal bringing Amazon to Northern Virginia. That rule required officials to give the company a warning before releasing records on the project. The practice isn’t necessarily a problem, Rhyne said, unless it becomes an invitation to interfere with an agency’s FOIA obligations.

“Usually it’s just a pro forma sort of thing,” Rhyne said. “This appears to be trying to change the response.”

‘Please advise what time you plan to release this’

The initial notice in the Parole Board case, which made no mention of redactions, said the forthcoming report dealt with allegations the board didn’t follow policies and procedures while granting parole to a prisoner. That person was later revealed to be Vincent Martin, who had been serving a life sentence for fatally shooting police officer Michael Connors during a traffic stop 40 years ago but had drawn praise for his rehabilitation efforts while incarcerated. The complaints about the process, the inspector general’s office wrote, had been substantiated.

The inspector general’s office sent the notice to Mercer and Moran early in the afternoon on July 23. The emails said the report was scheduled to be released the next day.

Then the pushback started.

“Please advise what time you plan to release this,” Nicky Zamotsny, a Moran deputy, wrote in a reply email on the morning of July 24, a Friday.

About an hour later, she replied again.

“I want to let you know that we have reviewed this report and have concerns about the accuracy of several findings,” she wrote, copying Moran on the email. “We are preparing a formal response, which is forthcoming.”

The July 24 release did not go forward as planned.

That evening, at Zamostny’s direction, Chapman sent OSIG a formal response to the report’s findings. The records show that response was prepared with input from Moran’s office and the attorney general’s office.

The attorney general’s office appeared to be fulfilling dual roles in the matter, advising the Parole Board on its response refuting aspects of OSIG’s findings while advising the inspector general’s office on how it should respond to FOIA requests that would make those findings public. When two state agencies have adverse interests, the attorney general’s office said, it has two legal teams working independently of one another. That’s what happened in the Parole Board case, officials said.

Westfall thanked Chapman for her response, but noted it was “not required or requested at this point.”

A weekend passed. 

Early in the morning of July 27, a Monday, an OSIG staffer said the report had been delayed and the office was waiting on “the go-ahead from Mike” to release it.

A few hours later, the inspector general’s office received a new communication from Chapman. She said she had “received information” the inspector general would be distributing the report on her board to “the public/media in response to a FOIA request.” Chapman told Westfall “most of the information you received from us” was exempt from FOIA.

“Based on the report that was presented, it is unclear to us what information you plan to redact from the report,” Chapman wrote, copying Moran and Zamotsny. “Please note that the Parole Board maintains its FOIA exclusions and by providing the information requested (which was mandatory for us to provide) we have not waived our FOIA protections.”

The records show Moran and Zamostny were communicating with Chapman about half an hour before she sent her message to OSIG invoking the Parole Board’s FOIA exemption. Officials redacted the text of most of those emails before giving them to the Mercury.

What happened next is unclear. In one email, Westfall said Chapman’s objection would be discussed at a meeting, but other emails dealing with the response to Chapman’s request were also redacted. By the end of that day, the emails show, the inspector general’s office had a redacted copy of the Parole Board report in hand and was discussing an updated release schedule.

On July 29, officials released the heavily redacted document to reporters from the Associated Press, the Richmond Times-Dispatch and WTVR. 

The blacked-out version included no information about what the board had been accused of and what allegations had been deemed valid.

“I find the political corruption in Virginia rampant and devastating,” Maureen Clements, a sister of the slain police officer who said she had filed a complaint about the Parole Board’s actions, told the Associated Press at the time, adding she wasn’t even sure the redacted report dealt with her complaint.

When Republican legislators released the full report in early August, it said OSIG had found the Parole Board had not “endeavored diligently” to contact the victim’s family while considering parole for Martin.

The report covered activity that occurred before Chapman took over as the chair of the Parole Board in mid-April. She succeeded Adrianne Bennett, who left for a judgeship in Virginia Beach. Chapman has insisted many of OSIG’s findings are incorrect and based on faulty understandings of the Parole Board’s obligations.

According to the report, Parole Board employees said “policies and procedures regarding proper victim notification were not always followed under Bennett’s tenure as Chair.”

“The employees stated that Bennett was vocal about not wanting to contact victims and particularly not in the VLM case due to the expectation of opposition because the victim was a police officer,” the report said.

The victim’s family in the Martin case was ultimately given a chance to provide input, but OSIG determined it did not happen under the proper timeline and process.

The Parole Board has a broad exemption from open-meetings and public-records laws due to the sensitive nature of its work, which can involve hearing testimony from fellow inmates and associates of people convicted of violent crimes. The investigative report on the Martin case included information that a co-defendant in the murder case had tried to raise concerns about Martin’s release. The Parole Board didn’t deem that person credible and declined to contact him, but allowed other inmates and parolees to express support for Martin, according to OSIG’s report.

Gilbert said Republican legislators are still considering taking Westfall to court to get unredacted copies of the other reports. And he stood by GOP leaders’ decision to give the media the original report in unredacted form.

“The whole point of him having to send those findings to the General Assembly is so that the representatives of the people can fix the problems that he identifies,” Gilbert said.

After the report’s initial release was delayed, OSIG prepared a revised FOIA notice Westfall could send Moran and Mercer notifying them it was now going public on July 29. Unlike the original, the second notice mentioned redactions had been made.

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Graham Moomaw
Graham Moomaw

A veteran Virginia politics reporter, Graham grew up in Hillsville and Lynchburg, graduating from James Madison University and earning a master's degree in journalism from the University of Maryland. Before joining the Mercury in 2019, he spent six years at the Richmond Times-Dispatch, most of that time covering the governor's office, the General Assembly and state politics. He also covered city hall and politics at The Daily Progress in Charlottesville.