Virginia Supreme Court decision could restrict how much information state agencies must release

A recent decision by the Virginia Supreme Court that narrowed the amount of information a public agency has to release could have broad implications for future public records requests in the state.

The court ruled on Sept. 17 that the state Department of Corrections did not have to release documents relating to safety and security measures around executions, even if information exempted by the Virginia Freedom of Information Act is redacted.

Justice Cleo E. Powell wrote in the decision, “The wording of the statute applies the exclusion to the entire drawing, manual, minutes or record and makes it disclosable only at the discretion of the custodian. Nothing in this section speaks to redaction except for a general reference to the portion of disclosure at the discretion of the custodian.”

Justice William C. Mims was joined by Justice S. Bernard Goodwyn in a partial dissent from the court’s decision. While agreeing with Powell about the exemption for safety records, Mims said the majority’s ruling on redactions was at odds with the Virginia statute’s strong presumption in favor of public access:

“The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law.”

Mims argued that the state public records law “does not create a ‘blanket exclusion’ for the requested records, and the VFOIA therefore requires VDOC to release any non-exempt information contained in the requested records.”

Open government advocates are concerned by the assertion in the decision that the public records statute “creates no requirement of partial disclosure or redaction” when it comes to safety and security exemptions.

State Del. Scott Surovell, who brought the case, had sought a number of documents about the Department of Corrections’ execution procedures.

After the decision was issued, Surovell was concerned about the impact of the court’s ruling, according to the Washington Post. “They’ve incentivized government officials to sprinkle so-called ‘safety provisions’ in any records they don’t want the government to see, and they’ve also directed the courts that they have to give great deference to government officials about what documents the government officials want to produce,” he told the Post.

In an editorial column for the Richmond Times-Dispatch, Megan Rhyne, executive director of the Virginia Coalition for Open Government, expressed concerns with not only the court’s decision, but what she sees as a trend away from open government in the state.

The court has issued six pro-confidentially decisions within the past four years. Additionally, Rhyne noted that the Virginia governor’s office has declined to grant requests for access to a now-completed investigation into misconduct accusations against state alcoholic-beverage agents.

Leadership for open government must come from the top and “the bad apples are frequently the ones in the highest levels of authority. They set the tone; they set the precedent,” Rhyne wrote. “When the governor’s office says FOIA prohibits release of a record (FOIA’s exemptions are discretionary, not mandatory), other agencies or political subdivisions may be emboldened to misstate their duty to disclose. When the General Assembly doesn’t record votes, a school board may pick up the practice. When the courts say they aren’t even the custodian of a database that is literally in their possession, a city may decide its salary database is off-limits, too.”

Gov. Terry McAuliffe’s spokesman, Brian Coy, told the Daily Press that the court’s ruling would be studied, but it is too early to know how future records requests will be handled.

The state’s Freedom of Information Council has been conducting a three-year evaluation of the Virginia public records law.