Category Archives: Spotlight on a Lack of Openness

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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The case of the withheld mugshots

Ten days ago, the Daily Press reported that it had been unable to get copies of certain booking photos (a.k.a. mugshots). The Virginia Freedom of Information Act (FOIA) requires the release of booking photos in most circumstances. Attention thus far seems to have focused on two aspects of the Virginia State Police’s refusal to disclose the photos. This post calls attention to other aspects of the troubling refusal to disclose — based on the information available so far, State Police’s reported rationale doesn’t hold up under scrutiny.

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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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All the sunshine they see fit to let in

Happy Sunshine Week!

As we start this week (complete with Mother Nature’s reminder that Sunshine Week is a metaphor), it seems appropriate to start with some commentary on the general state of things.  As others (such as Megan Rhyne of VCOG, in this Richmond Times-Dispatch profile) have noted, there is both good and bad when it comes to open government in Virginia.

Some news outlets have pointed out “storm clouds,” and we agree that cases of legal and PR attacks on journalists and whistleblowers are troubling.

But what is just as concerning, if not more, are the smog and haze that come from inappropriate official attitudes.  These are not the officials who take an aggressive view of a particular FOIA exemption.  These are the officials who are apathetic about open government and easy access to public records; the officials who offer preferential public records access only to certain favored people; the officials who have it in their power to improve government openness but prefer instead to offer only the openness that they feel you deserve.

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Continuing a conversation about e-mail retention

On Friday, we started a conversation (at least as far as Twitter lets you have one) with the Library of Virginia and the Virginia Coalition for Open Government regarding e-mail retention.  This post expands upon what the state is currently doing and why it should be doing something else.

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