Two recently created cabinet-level positions in Gov. Ralph Northam’s office would gain a broad exemption from Virginia’s public-records laws under a bill advanced Tuesday by a House of Delegates committee.
The legislation would extend the Virginia Freedom of Information Act’s working papers and correspondence exemption, often criticized by open-government advocates as creating a vaguely defined shield of secrecy around the actions of top officials, to the positions of chief workforce development adviser and director of diversity, equity and inclusion.
The workforce position, currently held by Megan Healy, was created in 2018 to address job training and economic issues. It includes oversight of the Virginia Employment Commission, which has struggled to keep up with a flood of unemployment insurance applications amid the COVID-19 pandemic.
The diversity officer role, created in 2019 to address racial inequities and promote inclusivity in state government, is currently held by Janice Underwood.
State law already allows the governor’s office to invoke the exemption in response to many public-records requests, but it applies only to the governor, cabinet secretaries and other specific jobs like chief of staff, counsel and policy director. Supporters of the bill characterized it as a mostly technical fix to ensure the exemption applies evenly to gubernatorial appointees who don’t happen to have the word “secretary” in their title.
“The governor is making this a part of the cabinet,” said Del. Delores McQuinn, D-Richmond, the bill’s sponsor, at its initial subcommittee hearing Tuesday morning. The Northam administration also spoke in favor of the bill.
Megan Rhyne, director of the Virginia Coalition for Open Government, urged legislators not to expand a public-records exemption she said has been stretched beyond its original intent to give governors “very great power” to keep information secret.
“It will actually also affect you as members of the General Assembly because you have no more rights under the Freedom of Information Act to access records than does any other citizen,” Rhyne said.
The bill passed out of the House General Laws Committee Tuesday afternoon on a 13-8, party-line vote.
Del. Barry Knight, R-Virginia Beach, said Democrats may like Northam’s pick for diversity officer, but might be less comfortable with the FOIA exemption if applied to the person with the same job in a future Republican administration.
“I don’t think we need this,” Knight said.
Del. Marcus Simon, D-Fairfax, said he saw the bill as more of a “semantics” issue and a way to ensure the law applies to cabinet officials evenly.
“Whether we think we ought to be doing that for the cabinet secretaries or not is another question,” Simon said.
In theory, the working papers/correspondence exemption from FOIA is meant to give elected officials some level of freedom to conduct business without having to worry about everything put to paper or in written communications, such as a governor’s notes or internal briefs laying out the pros and cons of a particular policy decision, coming under public scrutiny. Working papers are defined in the law as documents “prepared by or for a public official” only for their “personal or deliberative use.”
In practice, it creates a thick layer of secrecy that’s routinely invoked to withhold records showing how the Executive Branch oversees and issues directives to state agencies. And, depending on how it’s used, it can apply to large numbers of officials conducting public business:
Working papers and correspondence of the Office of the Governor; Lieutenant Governor; the Attorney General; the members of the General Assembly, the Division of Legislative Services, or the Clerks of the House of Delegates and the Senate of Virginia; the mayor or chief executive officer of any political subdivision of the Commonwealth; or the president or other chief executive officer of any public institution of higher education in Virginia. … “Office of the Governor” means the Governor; the Governor’s chief of staff, counsel, director of policy, and Cabinet Secretaries; the Assistant to the Governor for Intergovernmental Affairs; and those individuals to whom the Governor has delegated his authority pursuant to to § 2.2-104. § 2.2-3705.7.
In 2016, when former Gov. Terry McAuliffe restored the rights of more than 200,000 felons, his administration claimed the list of names used to carry out the sweeping executive order was a working paper. Prosecutors and others soon discovered some inmates still serving time for violent offenses were mistakenly showing up in state records as having their rights restored. Nevertheless, the McAuliffe administration refused to release the full list even after the state’s FOIA Council opined that the governor’s legal interpretation was incorrect. As part of a civil settlement in 2017, the administration eventually agreed to hand over the list to a Northern Virginia prosecutor who had sued for it. By that time, the document was largely moot because the Supreme Court of Virginia had already struck down McAuliffe’s order.
The working papers exemption was invoked again in 2017 after the deadly Unite the Right Rally in Charlottesville to withhold records dealing with the state’s public safety planning. The law firm Charlottesville hired to investigate what went wrong also encountered resistance while seeking access to state records.
More recently, the Northam administration invoked the working papers exemption to shield records detailing its internal response to a watchdog report that found the Virginia Parole 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.
In 2018, Northam’s office said the working papers exemption also protects the governor’s calendar. At the time, Northam was under scrutiny for meeting with Dominion Energy’s CEO shortly after the governor replaced two members of the State Air Pollution Control Board while a vote was pending on a key permit for Dominion’s now-scrapped Atlantic Coast Pipeline.