For Virginia state government, secrecy is too often the norm
The Virginia State Capitol in Richmond. (Ned Oliver / Virginia Mercury)
What do you have the right to know about what your state government is doing?
In Virginia, not a lot.
Virginia, like the federal government and all 49 other states, has a freedom of information law that rests on the idea that the public’s business should be accessible to the public. Governments are allowed to keep certain sensitive business secret, but it’s on them to justify why the secrecy is important enough to deviate from the norm of giving the public access to public information.
We don’t do it that way, and if we’re being honest, everyone in Richmond knows that. In practice, Virginia government too frequently operates as if the Freedom of Information Act were reversed: Secrecy is the norm, and it’s the public who has the burden of justifying why the state should deviate from that and make documents open and accessible.
Here’s how it stands in Virginia.
The General Assembly isn’t subject to FOIA laws. You have no right to see lawmakers’ emails, correspondence or other internal business.
Judges aren’t subject to FOIA.
The State Corporation Commission, which oversees utilities, banking, insurance and other business-related sectors, isn’t subject to FOIA.
The governor’s office and the Office of the Attorney General technically are, but secrecy exemptions written into FOIA have been construed so broadly that they routinely block the release of information on tenuous grounds.
Gov. Glenn Youngkin’s administration’s recent refusal to release 87 of 90 records related to the crafting of the Virginia Department of Education’s abrupt policy shift on the treatment of transgender students is a case in point.
Ben Paviour, a reporter at public radio station and NPR affiliate VPM News, recently requested all drafts of the new model policies, any email correspondence related to those drafts and records that include the words “trans” or “transgender” in emails with Superintendent Jillian Balow between Aug. 1 and Sept. 19 of this year.
The Virginia Department of Education acknowledged it had 90 records responsive to his request. But it chose to withhold 87 of them — a chunk that amounted to 315 pages of documents — citing the “Governor’s Confidential Working Papers” exemption in FOIA.
The transgender issue isn’t the point here. The point is that if you’re going to construe correspondence and documents related to public policy changes within the executive branch as “confidential working papers,” then you’re basically saying the public doesn’t have the right to know what decisions are based on. You just want them to trust you.
Youngkin isn’t the only Virginia governor to use the working papers exemption as a shield, although his administration does appear to be leaning into it with enthusiasm. Former Democratic Gov. Terry McAuliffe cited the same exemption to claim he didn’t have to release a list of the roughly 206,000 felons whose rights he restored in one fell swoop.
Virginia’s FOIA Council said McAuliffe did — but the FOIA Council is advisory only and can’t make anyone do anything. McAuliffe didn’t agree to release the list until he was sued by Loudoun County’s commonwealth’s attorney and a civil settlement was reached. By that time, the whole issue was moot because the Supreme Court of Virginia had decided the governor hadn’t had the power to carry out a mass rights restoration that way.
There’s an important lesson Virginia’s government sends here: We might be denying access to documents unlawfully, but you’ll have to sue us to make us reverse course. That will be expensive, and it will take a very long time, and probably by the time it is resolved, the information will be largely irrelevant.
The General Assembly sometimes will pull itself together to make vague noises of concern, but again, its members aren’t subject to FOIA themselves. And they’re hardly models of transparency either.
Let’s not forget that the legislature’s system of crafting the state budget via conference committee means small groups of legislators end up negotiating billions in spending behind closed doors.
All too often officials will tell you, striking a tone of wistful regret, that their hands are tied when it comes to exemptions.
They aren’t. The exemptions are not absolute prohibitions. State and local governments can choose to withhold records under the FOIA exemptions — and while sometimes that choice is clearly the responsible and right decision, it is indeed a choice, one that is supposed to rest on whether the need for secrecy outweighs the norm that the business being done for the public should be open to the public.
Politicians of all parties like to tout transparency. So let’s be transparent here: In Virginia, more often than not, the government doesn’t actually think you have the right to know what it’s doing.
A sampling of recent Virginia FOIA controversies
- Gov. Glenn Youngkin’s office refused to disclose communications with the Virginia Department of Education regarding major education policy decisions on school COVID-19 guidelines and equity initiatives, as well as communications with the Virginia Community College System over the hunt for a new chancellor. (Virginia Mercury)
- News organizations sued the Youngkin administration to try to gain access to the information coming into the education tipline the governor publicized as a way to stop the teaching of critical race theory in schools. (Associated Press)
- The Supreme Court of Virginia refused to unseal judicial disciplinary records detailing the suspension from the bench of a Virginia Beach judge who also served as chair of the Virginia Parole Board. (Virginia Mercury)
- Emergency management officials refused to release details about Virginia’s hiring of an outside consulting firm to help boost PPE and testing resources during the earliest phase of the COVID-19 pandemic, including 120 pages of recommendations and reports on the state’s handling of the crisis. (Virginia Mercury)
- The executive branch during then Gov. Ralph Northam’s tenure redacted nearly all of the Office of the State Inspector General’s report on alleged misconduct by the Virginia Parole Board. (Virginia Mercury)
- Democrats advanced legislation to expand the working papers exemption to two recently created cabinet-level positions. (Virginia Mercury)
- Northam argued he doesn’t have to reveal his calendar because of the working papers exemption (Virginia Mercury)
- Then Gov. Terry McAuliffe’s administration and Virginia State Police resisted FOIA requests related to the deadly Unite the Right rally in Charlottesville, including requests from the former federal prosecutor the city hired to review how public safety failures allowed violence to break out. (Richmond Times-Dispatch)
- McAuliffe refused to release an independent investigation by Virginia State Police into an incident where a Black University of Virginia student was slammed to the ground and bloodied by Virginia ABC police. (Virginian-Pilot)
- A judge fined former House Speaker Eileen Filler-Corn $500 for an overly dismissive FOIA response her office sent to a Northern Virginia lawyer seeking records about her decision to remove Confederate statues from the Capitol. (WTVR)
- Former Attorney General Ken Cuccinelli argued that FOIA doesn’t apply to the Office of the Attorney General. He later walked the claim back. (Washington Post)
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