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.
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.
UPDATE: UVA won.
A FOIA case is pending before the Supreme Court of Virginia. Given the Court’s recent history (for example, on cameras in the courtroom and FOIA and the SCC), that alone is cause for concern. This post discusses the case, what’s at issue, and how it matters for open government in Virginia.
Later this week, probably on Thursday, April 17th, the Supreme Court of Virginia will release its next batch of opinions. The Court hears cases in sessions, which happen about every 6-8 weeks. By tradition, the Court releases all published opinions in cases argued at the previous session on the last day of the next session. The Court isn’t required to follow that schedule; it can take as long as it wants. But month in and month out, the Court follows its traditional schedule in all manner of cases, complicated and simple, controversial and not.
It is cause for raised eyebrows therefore that the Court missed its usual timeframe on one case (record no. 130934) argued in January: the entity formerly known as the American Tradition Institute (ATI) and Virginia Delegate (and Congressional candidate) Bob Marshall v. the University of Virginia and former UVA professor Michael Mann. This is pure speculation, but there may be multiple opinions or close questions where the Court wanted to write carefully. For our purposes, the key points are that a FOIA case has reached Virginia’s top court, with significant implications for all Virginia citizens.
If you’re interested in a legal topic, it’s worth making a habit of reading legal blogs that discuss the subject. Any Virginia lawyer with an interest in appeals would tell you that Steve Emmert’s Virginia Appeals blog is among the best for following Virginia appellate law. And, generally speaking, disagreeing with eminent advocates like Mr. Emmert is not a good sign.
But in an otherwise great January 13 post that praised the Supreme Court of Virginia starting to make oral argument audio recordings available online, he said something that we couldn’t disagree with more:
“…. without any advance announcement, the Supreme Court of Virginia has begun to make publicly available the audio of oral arguments during sessions of the full court. (There will be no access to writ-panel arguments, but you shouldn’t be greedy.) ….” [emphasis added]
Now, that emphasized bit above may have been merely an expression. We don’t believe that Mr. Emmert would oppose or disagree with even greater access. And it is entirely appropriate to be thankful for the court’s decision to start providing audio. But that statement is wrong on two levels.
First, it is not greedy to want more openness in government generally or in the law in particular. Openness and transparency makes government and law better. It provides legitimacy. It fosters knowledge and understanding. It helps the public. Openness is a benevolent principle.
Second, when it comes to public access, you should be greedy. To take just one example, with respect to public access to appellate courts, you should want Virginia to rank at the top of the 50 states, rather than toward the bottom. And it wouldn’t take much to get there. Virginia would been among the top ranking states if it had (i) live audio (which is possible and inexpensive given that audio is already being produced); (ii) online access to briefs (which already exist in electronic form); and (iii) opinions that can be cited over time (which could be achieved through a public domain citation system and/or freely-accessible electronic versions of the official Virginia Reports volumes).
So, Virginia, when it comes to greed for more public access to the law and government, remember this: we all have a stake in this company, and greed is good.
Federal FOIA case follow-up
Last month, we wrote about Electronic Frontier Foundation v. Dept. of Justice, a federal FOIA case before the U.S. Court of Appeals for the D.C. Circuit, which concerns whether legal memos from the Office of Legal Counsel (OLC) are exempt from disclosure.
Unfortunately but perhaps not surprisingly, the D.C. Circuit ruled yesterday that OLC memos were exempt from disclosure under the “deliberative process privilege” of 5 U.S.C. § 552(b)(5) (Exemption 5), which covers “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” Steve Vladeck, writing at Just Security, has a good discussion of the problems that result from the court’s reasoning.
Although agencies need legal advice, and do sometimes need that advice to be private, formal legal opinions that agencies rely upon and/or follow seem different. The public has some need — and right — to know how the Executive Branch interprets and applies the law — the “working law” (in the parlance of this case and prior cases). And it’s not clear how — or whether — the D.C. Circuit would prevent agency game-playing surrounding whether an agency has formally “adopted” OLC memos.
As Vladeck’s Just Security post hints, the best solution would be for one of the elected branches to clarify and resolve when OLC memos/opinions are binding on, or otherwise become the official position of, an agency and therefore required to be public. Of course, the list of problems that Congress is unable or unwilling to tackle could drive one to despair, and it understates the situation considerably to note that recent presidents (of both parties) have not made openness a priority.
What’s coming up
With the 2014 session of the Virginia General Assembly right around the corner, there are many open government bills and subjects worth discussing, and we intend to do that. (In the meantime, we recommend starting with this bill chart from our friends at the Virginia Coalition for Open Government).
First, however, we’ll soon be releasing a 50-state report card regarding public access to state highest courts. (If that sounds awkward, blame NY and MD for being unable to say state supreme courts.) Sadly, Virginia ranks near the bottom in public access — a fact Supreme Court staff seem to have been concealing through true but misleading public statements. Real public access is on-demand, online public access, and it’s time that Virginia’s policymakers and citizens had solid information about what the Supreme Court of Virginia’s secrecy is denying to the Commonwealth.
We’ve been away for a while — a bit of a summer hiatus. We’ll try to ramp it back up.
With all eyes on the SCOTUS this week, it may be a good time to emphasize contrast between the SCOTUS and the Supreme Court of Virginia. In some aspects of the comparison, the SCV comes out extremely well (e.g., case load, succinctness and understandability of opinions), but there are also areas where the SCOTUS puts the SCV to shame.
First, if you want actual, usable copies of the official “U.S.” case reporter, SCOTUS has more than 50 volumes ready for access/download. By contrast, the SCV offers only slip opinions, with no access to the official “Va.” reporter. We’ll return to this subject at a later date.
Second, the briefs are critical to understanding cases before an appellate court. Via link to the ABA website, the SCOTUS website offers online access to current merits briefs. The SCV has merits briefs in electronic form already but refuses to share them outside the Court (even with other Commonwealth public bodies).
The Court releases all of its audio recordings, including opinion announcements, to NARA (National Archives and Records Administration) around the start of the subsequent term in October. Announcement audio does not appear on the Court’s website and is only accessible via NARA. Oyez will typically have the recordings available a week or so after the start of the Term. [SCOTUSblog Live Blog 6/10/2013.]
At the Supreme Court of Virginia, not only do they not release audio recordings, they intentionally, systematically destroy them.
Welcome to Open Virginia Law. See the About page for more information.
This site is under development.