Citing FOIA exemptions, the Youngkin administration is withholding hundreds of pages of documents

Under both parties, legislative efforts to reform FOIA have largely failed, and some don’t see that changing anytime soon

By: - March 23, 2022 12:03 am

The Virginia Department of Education’s offices in the James Monroe Building in Richmond. The agency has recently launched new initiatives aimed at teacher recruitment and retention with the help of federal aid money. (Parker Michels-Boyce/ For the Virginia Mercury)

Since Gov. Glenn Youngkin’s inauguration in January, the Mercury has made more than half a dozen Freedom of Information Act requests related to some of his biggest policy decisions, from revised guidance on masking in schools to a report on “divisive concepts” in K-12 education.

The governor’s office and multiple state agencies have withheld hundreds of pages of documents in response, citing exemptions to Virginia’s Freedom of Information Act. In February, for example, the Virginia Department of Health refused to disclose 54 emails and attachments — a total of 855 pages, according to FOIA analyst Cristina Keener — that are responsive to the Mercury’s request for communications between the department and the Office of the Governor regarding new school guidelines. 

Those recommendations, coupled with Youngkin’s second executive order, made Virginia one of the earliest states to end required masking in schools at a time when cases were still surging.

Other state agencies have taken similar actions. In late February, Jillian Balow, the state’s superintendent of public instruction, ended virtually every equity initiative within the Virginia Department of Education, describing many of those efforts as promoting “divisive concepts.” The Mercury requested any exchanges related to the report between the governor’s office, Balow or Secretary of Education Aimee Guidera, but the department refused to release any of the 14 emails identified as responsive.

Virginia Republican gubernatorial candidate Glenn Youngkin takes the stage at an election-night rally at the Westfields Marriott Washington Dulles on November 02, 2021 in Chantilly, Virginia. Virginians went to the polls Tuesday to vote in the gubernatorial race that pitted Youngkin against Democratic gubernatorial candidate, former Virginia Gov. Terry McAuliffe. (Photo by Chip Somodevilla/Getty Images)

Jeff Kraus, FOIA officer for the Virginia Community College System, similarly denied a request for communications between VCCS representatives and the governor’s office after Youngkin sent a letter criticizing the agency’s hunt for a new chancellor. The administration would not comment on the governor’s specific concerns about the search process, but a columnist later revealed that Anne Holton — the wife of former Democratic Gov. Tim Kaine and a former Virginia Secretary of Education — was a top contender for the job.

With journalists and the public often limited in their access to information from top policymakers, FOIA requests can be a vital resource for shining light on internal deliberations and potential wrongdoing. “I always thought what statutes like the Freedom of Information Act promoted was accountability,” said Harry Hammitt, the editor and publisher for Access Reports, a long-running publication on freedom of information issues. “That anybody could get records about what various people had done in government and it provided an incentive for people like that to behave.”

The Youngkin administration’s frequent denials, though, have underscored many of the weaknesses within Virginia’s law. It’s an issue that experts think is unlikely to change. Del. Danica Roem, D-Prince William, said the state’s General Assembly made marginal improvements this year, including passing legislation that requires local governments to post meeting minutes within seven work days. But during the same session, legislators largely overturned a 2021 law that opened some closed-case police records to the public.

“Right now, Virginia is treating FOIA like a giant piece of Swiss cheese,” Roem said. “We’ve poked 170-some odd holes in it.”

‘What has me concerned is the very broad interpretation being given’

Roem was specifically referring to the 175 exemptions in Virginia’s Freedom of Information Act that allow officials to withhold documents from the public. Some of the biggest include attorney-client privilege and the working papers and correspondence exemption, an expansive code section that excludes any records “prepared by or for” a long list of public officials.

Del. Danica Roem, D-Prince William. (Ned Oliver/ Virginia Mercury)

The law is discretionary, meaning that record-holders have a choice on whether to withhold information under the exemption. Over the years, though, it’s been used by governors of both parties to shield documents, often on controversial subjects. Former Gov. Ralph Northam cited the code section to hide his daily calendar in the midst of a key permit vote on Dominion’s Atlantic Coast Pipeline. His predecessor, former Gov. Terry McAuliffe, claimed it shielded the list of felons included in his sweeping rights restoration order — some of whom regained voting rights despite not completing their sentences.

The frequent overuse of the exemption is important context, said Megan Rhyne, executive director of the Virginia Coalition for Open Government and an occasional Mercury contributor. Still, she said the Youngkin administration’s response to FOIA requests has presented some concerns early into his governorship. 

“What has me concerned is the very broad interpretation being given,” Rhyne said. State agencies cited the working papers exemption in response to every one of the Mercury’s requests, withholding hundreds of documents despite language instructing officials to interpret the statute narrowly. She said it’s also been concerning that agencies are invoking the exemption on behalf of the governor.

“Another agency, or another person, can’t invoke the working papers exemption for someone else,” she told the Mercury in February. And it’s not always clear if agencies are interpreting the statute correctly. 

The exemption does apply to a broad range of officials, including the governor, his office, all 140 members of the Virginia General Assembly and appointed officials confirmed by state legislators. But it doesn’t include most rank-and-file staff within executive branch agencies. Despite that, the Virginia Department of Education withheld 14 emails in response to a Mercury request for communications between agency staff — including Superintendent Balow and the state’s Assistant Superintendent Elizabeth Schultz — and Max Eden, an education research fellow at the American Enterprise Institute. 

Eden has opposed a diverse range of initiatives in K-12 schools, from what he’s described as critical race theory in schools to universal free lunch.

The agency did disclose 38 documents that showed Eden met with education officials, including Balow and Schultz, at least once over Zoom and once in person in late January and February. At one point, Eden shared a section of Virginia code related to challenging local school boards with Dicky Shanor, Balow’s chief of staff at the Department of Education.

Jillian Balow, Virginia’s superintendent of public instruction. (Wyoming Department of Education)

Eden told the Mercury last month that he’s known Balow and Guidera for years. The Zoom call, he said, included a general discussion of critical race theory and some of his thoughts on the governor’s executive order banning “divisive concepts” in public education.

“As a general rule, of course, I don’t disclose many details of my conversations with policymakers to reporters as it’s essential to respect the confidence of deliberative discussions,” he wrote in an email. Rhyne also emphasized that many FOIA exemptions, including the working papers exemption and attorney-client privilege, are intended to protect decision-makers from public scrutiny as they’re considering courses of action.

“Some of these exemptions are designed to give them the ability to seek input from a wide range of voices in order to arrive at the best decision,” she said. Former state Del. Chip Woodrum, who spearheaded significant revisions to Virginia’s FOIA laws in the late 1990s, once told a reporter that the working papers exemption, specifically, was intended to protect records only if releasing them would interfere with government function.

Without seeing the records, though, it’s difficult to know if agencies are interpreting the statutes correctly. VDOE spokesperson Charles Pyle refused to explain the agency’s decision any further, writing that its prior response “stands as provided.” The Virginia Department of Health provided a clearer breakdown, writing that 29 of the omitted emails included exchanges between the agency and governor’s office and were withheld under the working papers exemption. Another 25 were between VDH staff and legal counsel, which fell under the attorney-client exemption in Virginia code, according to spokesperson Tammie Smith.

Historically, though, agencies haven’t always shielded records the governor’s office has sought to suppress. In 2009, then-Gov. Tim Kaine denied a FOIA request for his travel schedule and expenses while also serving as chair of the Democratic National Committee, citing the working papers exemption. The Richmond Times-Dispatch was able to obtain many of the records through a separate FOIA to the Virginia State Police, whose officers accompanied Kaine on trips.

Six years later, McAuliffe cited the working papers exemption to shield an investigation made after officers with the state’s Virginia Alcoholic Beverage Control Authority injured a Black student in Charlottesville by slamming him to the ground during an arrest. But The Virginian-Pilot was able to learn that McAuliffe’s press office had instructed the agency not to answer questions on the report through a FOIA request to ABC, which released some of their communications with the governor’s staff.

“Some of the instances when it’s been used have clearly not been what we ever intended to happen,” Rhyne said. She’d like to see at least one section of the law more narrowly tailored — that designates all “correspondence” to the governor and more than half a dozen other officials as exempt from FOIA requests. 

Both she and Roem, though, said the likelihood of changing the law isn’t high. Over her nearly five years in office, Roem — a former reporter — has been frustrated by the lack of support on both sides of the aisle for even modest reform, including bills to limit the fees charged for requests and establish an ombudsman program to encourage compliance.

“The governor’s office is doing the same stuff that we’re seeing at the state and local level,” she said. “The default setting for people in both appointed and elected positions, across the board in Virginia, has been to treat FOIA as an administrative burden as opposed to a necessary function of government.”

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Kate Masters
Kate Masters

Kate grew up in Northern Virginia before moving to the Midwest, earning her degree in journalism from the University of Missouri. She spent a year covering gun violence and public health for The Trace in Boston before joining The Frederick News-Post in Frederick County, Md. Before joining the Mercury in 2020, she covered state and county politics for the Bethesda Beat in Montgomery County, Md. She was named Virginia's outstanding young journalist for 2021 by the Virginia Press Association.