Category Archives: Openness News

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 mess at OES

If you care at all about open government in Virginia, you should be closely following the ongoing saga of the Daily Press’s attempts to get case information in bulk from the judicial branch and, most notably, the remarkable extent of resistance to transparency being displayed by the Office of the Executive Secretary (OES). Daily Press reporter Dave Ress, who (along with his colleagues) deserves a thank you from all of us, recently released OES’s May 14, 2015, letter declining to provide a copy of the case information database, despite the recent FOIA Council advisory opinion that OES should do so. This post examines OES’s 10-page, single-spaced, everything-and-the-kitchen-sink, anti-openness letter.

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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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Happy Crossover Day

Happy Crossover Day, fellow Virginians!  For any non-lawmaking junkies reading this post, “crossover”, which happens at the end of the day today, is the point after which each house of the General Assembly begins to consider only bills that have passed the other house.  It’s a key point in the General Assembly session calendar – it’s a deadline, because bills that haven’t passed the house in which they started can’t be considered further; and it’s a new beginning, because the work that helped bills pass one house now needs to be repeated in the other, from subcommittees to floor votes.

This post offers a couple of overall thoughts, and a few bill status updates, on this happy mid-Session occasion.

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Elections matter

As Richmond and Chesterfield voters head to the polls, chances are that they aren’t thinking much about the election for circuit court clerk. But out of all the officials being elected, there’s a pretty good chance that their circuit court clerk is the one who has the most ability to affect the openness of government.

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Transparency isn’t a problem, but defining openness too narrowly can be

Summary: Openness doesn’t prevent government from getting things done, but needlessly calcified notions of openness can be a problem. Virginia’s statutes regarding electronic meetings are a case in point.

Last week, Jason Grumet, who is President of the Bipartisan Policy Center and just so happens to be hawking a new book, wrote a column in the Washington Post advancing the thesis that “there is a dark side to sunlight.” He argues that well-intended open government reforms now have made private deliberation and compromise difficult, if not impossible, at the federal level.

If you’re thinking this is the type of thinking you’d expect from an organization founded by four consummate Washington insiders, you’re probably on to something.  If you’re thinking that the argument has serious flaws, you’re right.  Ellen Miller of the Sunlight Foundation does a good job of rebuttal in this blog post.  She notes that Congress exempts itself from the federal Freedom of Information Act, meaning that it isn’t transparency that’s stopping our dysfunctional national legislature from deliberating and compromising.  And she does a great job summing up benefits of transparency:

“[T]ransparency can shine a light on what’s not working as well as what does. It allows people to better understand how government functions so they can participate in the dialogue that is our democracy. It lets us learn of ineffective programs and push for their reform or repeal. It can also enable citizens and their representatives to learn of and prevent bad policies from being enacted. It forces those elected to represent us to justify the decisions they make in public. Only by doing that can they build confidence that they have made decisions in the public interest and not on behalf of special interests.  Finally, transparency allows citizens to identify the authors of flawed or failed policies as well as successful ones, and hold them accountable (or reward them) at the ballot box.”

It’s clear that openness is not a problem in principle. But Grumet’s challenge is a useful reminder to think about whether particular open government statutes create problems in practice, and, if so, whether there are actions that might be taken that can advance efficiency and openness simultaneously.   At least at the state level in Virginia, the answer is yes to both.

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