The Supreme Court of Virginia hates FOIA

This post puts the recent decision of the Supreme Court of Virginia in Dept. of Corrections v. Surovell into its troubling context.

We live in an age where those in power often act without transparency or accountability and usually would prefer even less of those vital values. Where those in power find it advantageous to create and exploit fear, uncertainty, and doubt (FUD) among the public. And where courts repeatedly have decided to defer to those in power.

Given the age we live in, maybe it should not be surprising that Governor McAuliffe is no fan of openness, pushing an expansive reading of working papers and other exemptions, asserting that agency policy can override and expand the FOIA exemption for personnel records, and avoiding centralized email archiving and document management systems that would radically improve records searching and compliance (for FOIA requests and all other purposes).

And maybe it should not be surprising that the Office of Attorney General Mark Herring chose to advance an unnecessarily radical litigation position, seeking to overturn the long-standing interpretation –  in an official opinion of a prior AG and by the FOIA Council – that FOIA requires agencies to release redacted records where some, but not all, of the information in the records falls within an exemption.  (Or, to put it another way, that agencies may withhold only exempt information where a record contains some information that falls within an exemption and some that does not.)

And, last but not least, maybe it should not be surprising that a recent 5-2 ruling of the Supreme Court of Virginia sided completely with the Virginia Department of Corrections and against Delegate, Senate candidate, and FOIA petitioner Scott Surovell. The Court’s ruling guts the duty to release redacted records and establishes a vague but lenient standard under which courts will defer to agency assessments’ of security concerns.

For analysis of the issues in the case, read the prior post. For an analysis of the opinion, see the description of it in the analysis of September 17, 2015 Supreme Court opinions on the Virginia Appeals blog, by Steve Emmert, a preeminent Virginia appellate lawyer.  Notably, Emmert, who’s willing to praise the Court for even small and overdue improvements in transparency, says he has “a dim sense of a tide turning in Virginia’s FOIA jurisprudence,” away from openness and toward siding with government entities.

At this point, however, the trend in open government jurisprudence is not dim at all – it is a bright, flashing light. In recent years, it has become clear – through unnecessarily broad, careless, and extreme rulings – that a majority of the Supreme Court of Virginia is actively anti-openness:

  • The majority opinion in the Court’s September 17 ruling in of Corrections v. Surovell ignored FOIA’s explicit language favoring openness and gutted the duty to release redacted records – without even mentioning Va. Code § 2.2-3704 or responding in any way to the explanation by two justices of how the statute actually does support the duty to redact.
  • The Court ruled in April 2015 that a law enforcement investigative exemption applies even after the investigation is officially closed and even where the investigation does not conclude that an actionable crime was committed.
  • And, in a ruling that didn’t concern FOIA but was nonetheless revealing of the Court’s attitudes and approach to interpreting statutes with respect to open government, the Court ruled in 2013 that judges need not even give a reason when they deny a request to allow cameras in the courtroom.

Among the most troubling aspects of the rulings in this list are the Court repeatedly

  1. disregarding the principles in Va. Code § 2.2-3700, which the General Assembly explicitly set forth to guide interpretation of FOIA; and
  2. not just ruling against openness but doing so with what seems to qualify as reckless abandon.

At this point, it seems a realistic FOIA litigant would focus less on getting a win for openness at the Supreme Court of Virginia and more on getting clarity that can provide a basis for seeking legislative change.

The good news, if there is any to be found, is that all of the above decisions could be reversed through amendments to existing statutes. And, to indulge a bit of cynicism, given that legislators have generally carved themselves out of FOIA, fixing these problems comes at no real cost to the General Assembly. Unfortunately, however, the same powers that have sought these rulings will fight to keep them, and the FOIA Council’s ongoing review has been a farce thus far. Let us hope that open government forces are up to a challenge.



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