One of the less noticed features of the Virginia Way is the long-running tendency of the commonwealth’s leaders to conduct their decision-making behind closed doors. While the Virginia Freedom of Information Act presumes all government business is by default public and requires officials to justify why exceptions should be made, too many Virginia leaders in practice take the opposite stance, acting as if records are by default private and the public must prove they should be handled otherwise.

In this feature, we aim to highlight the frequency with which officials around Virginia are resisting public access to records on issues large and small — and note instances when the release of information under FOIA gave the public insight into how government bodies are operating. 

Times-Dispatch sues Richmond over refusal to release shooting investigation

The Richmond Times-Dispatch is suing the Richmond School Board over its refusal to release an independent investigation into a shooting outside a downtown graduation ceremony that left two dead and five others shot. 

Richmond Public Schools previously declined to release the report to the paper, saying it qualified for an exemption in the Virginia Freedom of Information Act allowing records to be withheld if they are protected by “attorney-client privilege.” 

The Times-Dispatch is arguing that the exemption doesn’t apply because the School Board commissioned the report for “operational” rather than legal advice. 

One board member, Jonathan Young, proposed releasing the report at a Nov. 20 meeting, but his motion failed on a 6-2 vote, with the majority arguing that releasing the report could open up the division to litigation and impact the ongoing case against the alleged shooter. After the meeting, Young told the newspaper that “the public is at a disadvantage if they are unable to see the very audit, the very investigative report that we commissioned for the purpose of holding us accountable.” 

Judge rules against Virginia NAACP in felon rights restoration disclosure case

A Richmond judge ruled that a database used by Gov. Glenn Youngkin’s administration to decide whether to restore voting rights to people convicted of a felony is a “working paper” that does not need to be disclosed under the Virginia Freedom of Information Act. 

“It doesn’t seem to be a close question,” said Judge W. Reilly Marchant, according to The Washington Post. “It’s clearly a working paper created for [the governor’s] deliberative use.” 

Virginia is the only state in the nation that permanently strips voting rights from anyone convicted of a felony unless the governor chooses to restore them. While governors in recent years made the rights restoration process largely automatic, the pace of restorations has slowed significantly under Youngkin. 

The Virginia NAACP sued the administration on FOIA grounds this October, arguing the database couldn’t legally be withheld. As The Post reports, former Democratic Del. Jay Jones, an attorney for the group, argued that because other governmental workers outside the governor’s office like local voter registrars have access to the database, it shouldn’t be considered a working paper. 

Youngkin counsel Richard Cullen said only about eight people in the governor’s office have access to the database, which he argued contained personal information that was shared with the government under the presumption it would remain private.

The Virginia NAACP it was disappointed with the ruling that the database is exempt from disclosure under FOIA, “even in partially redacted form removing applicants’ personal identifying information.” 

“This database contains key information, including the information collected about each applicant that informs the rights restoration decision,” the group said in a statement.

Case over journalists’ digital access to court records continues

The Richmond-based U.S. Fourth Circuit Court of Appeals heard arguments this week in a case brought by Courthouse News over restrictions the state of Virginia imposes on access to digital court documents. 

While the state allows attorneys to view court documents digitally through the Officer of the Court Remote Access system, members of the press and public cannot do so and must travel to the courthouse that holds a particular record to view it in person. 

Although not a conflict over FOIA, the case has major implications for journalists’ access to legal documents. In a story on the hearing, Courthouse News wrote that last year it took five days and more than 1,000 miles of travel to visit just 25 of Virginia’s circuit courts to review recent filings of public interest.

Attorney Roger Myers argued that “what the commonwealth has done is essentially made the access not meaningful for everyone else because it is just too much of a burden for any member of the press to cover a court or all the courts on OCRA by having to go and get physical access when there is already online access being made available to other people.” 

Attorneys for the state, however, said they were concerned that broadening access to the remote access system would lead to harmful data-mining and contended that reporters still can view all court records by physically going to a courthouse.

In an amicus brief, the Reporters Committee for Freedom of the Press and 38 media organizations noted that federal courts have provided the public and press with digital access to filings for more than 30 years through the Public Access to Court Electronic Records, or PACER, system. Additionally, they said, “courts in at least thirty-eight states provide some means of public online electronic access to judicial records.” 

Have you experienced local or state officials denying or delaying your FOIA request? Tell us about it: [email protected]