FOIA for the death penalty, or the death penalty for FOIA?

UPDATE (9/20): DOC won.

Every case before Virginia’s highest court is a big deal. But for the second time in as many years, the Supreme Court of Virginia is poised to decide issues of great significance for FOIA, above and beyond the regular significance of the court’s decisions.

Next Wednesday, June 3, the Court will hear the Virginia Department of Corrections (DOC) v. Scott Surovell. This is not the first time Delegate (and Senate-candidate) Surovell has fought for transparency, and in this case, he seeks to do so by bringing some sunlight to the administration of the death penalty in Virginia. The death penalty may be on the decline in Virginia, and now abolished in Nebraska, but it remains a hot and heavily litigated subject.

This post explains the case and includes links to the parties’ briefs – DOC’s Opening Brief, Surovell’s Brief, and DOC’s Reply Brief. (A very large tip of the hat to Surovell’s counsel, who provided these copies. The Supreme Court of Virginia, apparently content to be below average, still does not deign to provide the public online access to briefs or other case documents.)

The request, and the records and issues on appeal

None of the briefs details the full set of records that Surovell requested, but all of them had to do with DOC’s administration of the death penalty. (According to DOC’s brief, it gets 14-15 FOIA requests a year relating to the death penalty.) DOC produced 176 records to Surovell but withheld a number of others under the facility security exemption in Va. Code § 2.2-3705.2(6):

“Engineering and architectural drawings, operational, procedural, tactical planning or training manuals, or staff meeting minutes or other records, the disclosure of which would reveal surveillance techniques, personnel deployments, alarm or security systems or technologies, or operational and transportation plans or protocols, to the extent such disclosure would jeopardize the security of any governmental facility, building or structure or the safety of persons using such facility, building or structure.” [emphasis added]

Surovell brought suit, and the Fairfax County Circuit Court held a hearing in September 2014. After hearing from witnesses, the circuit court issued a mixed decision, upholding the withholding of certain documents but ordering DOC to produce some records in their entirety and other records in redacted form. After failing to persuade the circuit court to reconsider, DOC appealed.

The appeal concerns the following records, which the circuit court ordered produced (at least in part):

(1) a construction plan for the L-Unit, the execution chamber, and the electric chair;

(2) an electrician’s schematic of the execution chamber and the electric chair;

(3) 6 manufacturers’ installation and instruction manuals for the electric chair; and

(4) 6 current and prior execution manuals.

Here are the issues for the Supreme Court to decide (as stated by Surovell):

Did the circuit court err in ordering VDOC to produce the records at issue where, testimony failed to establish that disclosure would jeopardize security, and where VDOC failed to show any nexus between disclosure of these records and the speculated security risks?

Where a public body subject to VFOIA disclosure requirements fails to show that it would be unduly burdensome for it to create a redacted copy of a document that contains non-exempt and exempt material, does VFOIA permit that public body to withhold the entire document without review of its decision to do so?

Issue 1: What does it take to invoke the exemption?

This issue may be nominally legal in nature, but one of the first things that hits you about the briefs is how differently the parties view the facts.

DOC contends that unfettered public access to these records would be a “security nightmare,” making the Greensville Correctional Center and the “L-Unit” “vulnerable to anyone who might wish to help an inmate escape, attack an inmate, assault a member of the execution team, or otherwise infiltrate and do harm to the facility and those inside.” Those on death row are “the worst of the worst.” And to avoid any possibility of being accused of subtlety, DOC drops a 23 line footnote graphically detailing crimes committed by those sentenced to death in Virginia.

Surovell responds that DOC is worried about a “highly improbable (if not impossible)” hypothetical parade of horribles. Moreover, the records lack a connection to those scenarios – DOC “completely failed to establish a nexus between disclosure of the records at issue and those highly speculative security risks.” Surovell emphasizes that, after hearing DOC’s witnesses at a lengthy hearing, the circuit court “found that the testimony did not establish a legitimate security concern.” (As for the crimes footnote, it is an “inflammatory injection of irrelevant facts.”)

All that factual color obscures two interesting components of this issue: (i) what does a public body need to show to properly invoke the facility security exemption, and (ii) how closely should a reviewing court examine a public body’s security claims.  Everyone acknowledges that it’s the public body’s burden to show, by a preponderance of the evidence, that an exemption applies, per Va. Code § 2.2-3713(E). Beyond that, the parties have dramatically different positions.

DOC contends that it need not show that disclosure of the records would definitely, or even probably, cause security problems. Rather, DOC need only show that disclosure would jeopardize security. And courts should be deferential to the judgment of agency officials, particularly in a security or prison context. Citing a CIA case under the federal FOIA, DOC argues that courts “need not test the expertise of the agency” or “question its veracity” because “[t]his is necessarily a region for forecasts in which informed judgment as to potential future harm should be respected.”

Surovell responds that the exemption doesn’t deal in hypotheticals – what could happen. Instead, it concerns what would happen as a result of disclosure. He argues that FOIA does not require deference, that judicial deference to prison officials has limits, and that the court shouldn’t simply “rubber stamp” DOC’s decisions. According to Surovell, the agency needs to articulate a reasonable threat and show an “appreciable risk” from disclosure:

“The Security Exemption cannot be invoked whenever a public body asserts that there is potential that some un-identified problem could occur as a result. The agency must be able to articulate the threat to security and provide evidence sufficient for the court to objectively assess the reasonableness of the assertion and determine whether that risk is establish by a preponderance of the evidence. Imagined but unidentified threats, or the potential for such threats do not establish the Security Exemption by a preponderance of the evidence. Rather, the Code requires appreciable risk that disclosure “would” in fact “jeopardize” the security of a facility or the people within.”

Surovell notes that DOC has “robust” security mechanisms in place. DOC responds that it should not have to “cross its fingers and hope no one gets close enough to act on the information [in the records].”

Surovell notes that a lot of information about the execution chamber and process are public already because Virginia law mandates that non-DOC witnesses attend, those witnesses may take notes and are under no confidentiality agreement, and witnesses have detailed their observations in newspapers from Washington, D.C. to England. Indeed, Surovell’s only witness in the circuit court hearing was a lawyer who had observed three executions and who testified in detail about his observations.

DOC shrugs the already public information off, saying that the fact that some information in the records is public does not change the fact that the records in question fall within the exemption. Indeed, the execution manuals are so “highly sensitive,” says DOC, that only 5 of its approximately 11,500 employees are permitted to see them.

In the end, this issue boils down to what the proper judicial role is in a FOIA lawsuit when a public body claims an exemption: fully examine the factual basis for the exemption claim, defer to the public body’s claim, or something in between?

Issue 2: do public bodies have a duty to redact partially-exempt records?

That the parties don’t agree on whether DOC has properly claimed the exemption is to be expected.  More surprising, and of considerably broader significance in a FOIA context, is DOC’s challenge to whether a public body must release a redacted version of a record where only part of that record is exempt.

Surovell rightly notes that FOIA Council opinions have long held that agencies have a duty to redact. In October 2002, Advisory Opinion AO-13-02 concluded that DOC must release non-exempt portions of records concerning procedures for notifying an inmate’s relatives (through a designee) of serious illness or death: “if a record contains both exempt and non-exempt information, the public body may redact only the exempt information and must produce the remainder of the document.” A year later, in regard to a request for procedures concerning executions, Advisory Opinion AO-24-03 reiterated the point: “The law contemplates that it is possible to have exempt and non-exempt information co-mingled in a single record, in which case the non-exempt portion of the record must still be provided to the requester.” See also FOIA Council Advisory Opinion AO-11-00 (considering a request to DOC for certain data concerning first time felons and embracing redaction and disclosure of nonexempt information for both electronic and paper records).

DOC responds with Virginian-Pilot Media Cos. v. City of Norfolk Sch. Bd., 81 Va. Cir. 450 (Norfolk 2010), which held, in a case involving personnel records, that FOIA did not require public bodies to redact. DOC asserts that requiring redaction “would impose an unwarranted and onerous burden on State agencies” and that courts lack the statutory authority to order public bodies to release redacted copies of records.

In the end, however, none of the available authorities are binding on the Supreme Court of Virginia, and this issue will come down to how that court reads FOIA.

  • Does Va. Code § 2.2-3704(B)(2) require disclosure in redacted form, or does its last sentence only apply where a public body has made a voluntary decision to disclose in redacted form?
  • Should paper records be treated the same as electronic records, where releasing the non-exempt portion is more clearly required? See Va. Code § 2.2-3704(G) (“When electronic or other databases … contain exempt and nonexempt records, the public body may provide access to the exempt records if not otherwise prohibited by law, but shall provide access to the nonexempt records as provided by this chapter.”).
  • And does the wording of the particular exemption matter? (DOC attempts to distinguish between the facility security exemption at issue and other exemptions that either include mention of portions of a record or are worded in a way that seems to apply only to particular pieces of information, not to entire records. See, e.g., Va. Code §§ 2.2-3705.1(13) & 2.2-3705.2(2).)


The Virginia Coalition for Open Government (VCOG) sided with Surovell, filing an amicus brief that makes two points.

First, the circuit court conducted the case properly, and, given the absence of any procedural flaws, its ruling about what the evidence shows should be upheld. This is a classic legal argument that appellate courts should defer to trial courts’ first-hand assessments of the evidence.

Second, DOC’s position (that courts may not order agencies to release redacted records) misreads the statute and risks gutting FOIA. A public body that didn’t want to release information “could essentially eliminate the impact of VFOIA simply by creating documents that include a combination of public and exempt information” because the presence of any exempt information would allow the public body to withhold the entire record.

VCOG’s brief warns that the redaction issue does not only apply to DOC or to the facility security exemption at issue. An opinion in DOC’s favor “could eviscerate the effectiveness of current VFOIA law and profoundly affect the access all Virginians are statutorily entitled to have to information in the possession of their state and local governments.”

It is great to see VCOG weighing in before the Court. It is unfortunate that media and other pro-transparency groups did not join VCOG in the effort.

Assessing the Merits

On redaction, Surovell has the better statutory reading, for several reasons. First, particularly in its last sentence, Va. Code § 2.2-3704(B)(2) seems to apply to partially-exempt records. Second, it does not make sense to apply FOIA differently to paper and electronic records, and § 2.2-3704(G) is clear about the duty to release non-exempt parts of electronic records. (Among other things, there’s only one definition of “public record” in Va. Code § 2.2-3701, and it includes all formats of records, both paper and electronic.) Third, the general principles and spirit of FOIA, expressed in Va. Code § 2.2-3700(B), weigh in favor of requiring release of non-exempt parts of records.

Finally, DOC greatly overstates the burden of redaction. Last year’s U.Va. case held that agencies can charge for their exemption review, and it seems clear that agencies may charge for redaction time too. Given the ability to charge and the ability to ask a court to grant a longer response time (which is unlikely to be denied as long as an agency is making diligent efforts), there is no unreasonable or unworkable burden.

That said, anyone who isn’t worried about how this decision comes out hasn’t been paying attention to the Supreme Court’s growing, recent track record of interpreting statutes against open government arguments, sometimes in highly questionable ways.

Assessing the Politics

Maybe the most unfortunate thing about this case is that both Governor Terry McAuliffe and Attorney General Mark Herring seem happy to “eviscerate” FOIA.  Neither seems even to have offered an explanation of why they’re in court pushing to eliminate the basic duty to release non-exempt parts of record.

Interestingly, a December 19, 2002, official opinion of the Attorney General of Virginia embraced redaction, at least for electronic records, stating that public bodies were required to release nonexempt portions. See 2002 Op. Va. Att’y Gen. 9 (Dec. 19, 2002) (copy also available at AG website) (“If an electronic record contains both exempt and nonexempt information, access must be provided to that portion of the record that is nonexempt.”).

The fact that Herring’s subordinates are in court pressing an interpretation of law that is at odds with an official opinion raises significant questions about how much the public can rely on the Attorney General’s official, public interpretations of law.  It’s one thing if the AG publicly reverses an opinion — issuing a new opinion explaining his current interpretation and why an older opinion was erroneous or is no longer good.  It’s another for the OAG to silently abandon an opinion with no explanation at all.  (Neither of DOC’s briefs, filed by the OAG, even mention the 2002 opinion.)

It is true, as we’ve recently pointed out, that AG opinions are advice, not binding on agency clients.  But it also does not seem required that the OAG help clients overturn its long-standing, publicly-announced interpretations of law.

The Road Ahead

If you can’t attend next Wednesday’s arguments, the audio recording should be posted at the end of next week.  If it sticks to its normal practice, the Supreme Court of Virginia will decide DOC v. Surovell in mid-September (as part of the release of opinions at the end of the next session of arguments).

Because the Court’s opinion is interpreting a statute, the General Assembly will be free to reverse the opinion by amending the statute in 2016 or thereafter.  But given the McAuliffe administration’s position in this case, that could be an uphill battle, so let’s hope the Supreme Court declines DOC’s & OAG’s invitation to gut FOIA by adopting a combination of meek judicial deference to agency claims and no duty to release redacted records.


Note: The first line of this post under “Assessing the Merits” was edited after publication to clarify that section’s scope (on issue 2 only).


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