Category Archives: Legal Summaries

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.

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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.)

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The AG opines… so what? Part 2

The last post explained why Virginia’s AGs issue opinions, why AG opinions matter but don’t control agencies, and what effect AG opinions have in court. This post examines the recent opinion concerning mug shots and considers what can be done if an AG opinion is wrong or incomplete.

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Secret subpoenas, email archiving, and FOIA consequences – more 2015 bills

This post (the third in a series on 2015 bills) discusses two bills to sharpen the teeth behind FOIA by adding new potential consequences for violations (HB1646 and HB2223), a bill that would require centralized email archiving (SB674), and two bills that would permit secret subpoenas for Internet information, with no checks at all on prosecutors (HB1946 and SB919).

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More quick takes on 2015 bills

Continuing a series of posts (begun Monday) about bills in the 2015 General Assembly session, and resolutely ignoring the State of the Union nonsense, this post discusses (i) HB1573, concerning the Attorney General’s duties in representing the Commonwealth; (ii) HB1405 & HB1438, this year’s edition of the annual cage match between localities and newspapers on public notices; and (iii) HB1277 & SB955, which would permit and regulate hemp production.

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Quick takes on 2015 bills

There are a number of resources available to help find bills that may be of interest to those who believe in open government. The Virginia Coalition for Open Government’s annual legislative bill chart is a great place to start. Or you can try searching LIS or Richmond Sunlight databases for key words (on LIS, try 2.2-37*, which will identify all bills that make any changes in FOIA’s chapter). Rather than duplicate their efforts on bill identification, we’re going to leap right to quick commentary, as this year’s “short” General Assembly session powers along.

This post focuses on 5 bills (SB1133, HB1477, HB1635, HB1308, & HB1673) that are slated for consideration in Monday’s meetings of the Senate General Laws and Technology committee and the Civil and Criminal subcommittees of the House Courts of Justice committee.

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Update: Explaining the damages in the climate change FOIA case and the (negative) takeways for citizens

Yesterday, we posted regarding the Supreme Court of Virginia’s recent damages order in the ATI v. UVA FOIA case decided in April. A central sentence of that post was that “We’re at a loss to identify any basis for the $250 in damages that the Supreme Court of Virginia ordered.” The post noted that we would bring the matter to the attention of others, seeking their insight/explanation, that we would provide an update if more information became available, and that we hoped things were not as bad as they seemed. (In general, if you meet someone in the law who’s not open to new information and the possibility of things not being as expected, run the other way.)

Both on Twitter and off, leaders in Virginia’s legal & appellate community responded. Thanks Peter Vieth, Steve Emmert, and Jay O’KeefeThis post provides the explanation missed yesterday and then offers further thoughts in light of it.  In sum, things are not as bad as they seemed, but they’re not good either.

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Va’s top court orders mysterious damages in climate change FOIA case

Earlier this month, the Daily Progress and other media reported that the Supreme Court of Virginia awarded $250 in damages to climate scientist Michael Mann and the University of Virginia in a prominent Virginia FOIA lawsuit that we wrote about in April. (See also petitioners’ case documents webpage.)  The media did not post an actual copy of the order making the award, and non-legal media often doesn’t get legal details quite right, so we questioned via tweets whether that money was actually “damages” or merely an award of appeal costs. (This is an important distinction: Damages are something awarded to a party when another party has caused a legal injury without a legal justification; appeal costs are routinely awarded to prevailing parties in an appeal without fault under Va. Rule 5:35.) We now have a copy of the order, and it appears the media was dead-on … and the Supreme Court of Virginia was dead wrong.

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