Testing the “working papers” environment

It’s been a busy time for FOIA lately.  There’s the Daily Press’s worthy crusade to bring some transparency to the judicial branch, which has encountered resistance from both the bureaucrats at OES and court clerks.  There’s the deceptively rigid wall against transparency — and fancy water — that is your only legal source for liquor in Virginia.  And there’s the challenge to the policy in some Virginia police departments against giving family members information on the suicide of a loved one, protecting them by keeping them in the dark.  This post highlights another interesting FOIA suit that has gotten less attention so far.

Tomorrow, Tuesday, August 18th, at noon, the Richmond Circuit Court will hear Horner v. Virginia Department of Environmental Quality (case no. CL15002505), which puts at issue one manifestation of the McAuliffe administration’s tendency to assert Va. Code § 2.2-3705.7(2)’s “working papers” exemption for everything under the sun.

In the blue corner stands the Department of Environmental Quality (DEQ), an agency with considerable significance in these days of broad federal environmental regulations that Virginia must implement.

In the red corner stands Christopher C. Horner, a Virginia resident, a senior fellow at the Competitive Enterprise Institute; author of several successful books, including a few that won’t make EPA’s book club list and his latest, “The Liberal War on Transparency: Confessions of a FOIA ‘Criminal’”; and director of litigation for the American Tradition Institute (i.e., this is not his first Virginia FOIA rodeo).

The lawsuit aims to enforce Horner’s FOIA request for:

all correspondence (including, but not limited to, email correspondence) to, from, or copying Michael Dowd, Director of DEQ’s Air Division, which includes the terms “RGGI” or “compact” and is dated from March 15, 2015 to the present

In a nutshell, Horner wants to know how Virginia plans to comply with some of the EPA actions promulgated by the Obama administration.

DEQ produced 12 pages of email records and asserted “working papers” over two other records, later clarifying that the approximately 6 pages of withheld records “are Governor’s working papers which relate to the development of state plans under EPA’s proposed clean power plan Section 111D.”

Filings from DEQ make clear that it isn’t backing down from its Governor’s working papers claim. It asserts that the Director of DEQ falls within the last clause of the definition of “Office of the Governor” for purposes of the “working papers” exemption: “those individuals to whom the Governor has delegated his authority pursuant to § 2.2-104.” Says DEQ, its director has been delegated authority by the Governor to make submissions under the Clean Air Act (under a 1993 letter from then-Governor Douglas Wilder), the documents at issue were papers prepared for the DEQ Director’s deliberative use, and release “would have a chilling effect on [DEQ’s] freedom to assess and analyze the 111(d) regulations for Director Paylor.”

In a sworn statement attached to DEQ’s papers, Dowd also claims that the withheld records were produced for the deliberative use of the Secretary of Natural Resources, although she – unlike the DEQ Director – has never actually seen the records.

The broad and vague “working papers” exemption deserves scrutiny and reform.  It covers hundreds of people; if it extends to agency heads and their top aides too, it has even fewer bounds.  Whatever the politics, FOIA lawsuits are an important way of testing the exemption’s boundaries.

Tomorrow’s hearing should be interesting – it is likely to feature testimony from witnesses as well as legal argument. A ruling could come at the hearing or in writing later, and the circuit court might be just the case’s first stop on 9th Street. Stay tuned.


NOTE: We aren’t at this point posting case documents from the Horner v. DEQ case. As we’ve decried before, repeatedly, Richmond and other clerks force attorneys who obtain such public case records remotely to agree to illegal and unconstitutional provisions and threaten to revoke attorneys’ access if such remotely-obtained records are shared or published online. Hopefully one day an enterprising attorney or two will sue to invalidate that contractual brain child of OES and the clerks.  (No, OES and the clerks aren’t content to restrict the entire database of case records; they want to restrict each individual record too.)


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