Virginia Mercury: ‘Transparency groups file brief on working papers exemption in tip line case’
(Republished with permission under Creative Commons license CC BY-NC-ND 4.0.)
Ten media and transparency organizations including the Virginia Coalition for Open Government have filed an amici brief with the Virginia Court of Appeals, urging it to uphold a lower court ruling ordering the release of documents related to Gov. Glenn Youngkin’s education tip line that were sought by left-leaning watchdog group American Oversight. (Virginia Mercury Editor-in-Chief Sarah Vogelsong is on the Virginia Coalition for Open Government Board of Directors.)
After the Youngkin administration in January 2022 opened up the tip line for parents to report “inherently divisive practices” in public schools, American Oversight submitted a series of FOIA requests related to the tip line. The administration withheld over 800 pages of records, citing the exemption in the law for governors’ working papers. In August 2022, American Oversight sued for access to the records in Arlington Circuit Court, which last January ordered the governor’s office to produce the documents. However, the court agreed to pause that order while the administration appealed the ruling.
Virginia has argued in its appeal that the working papers exemption applies to all “written communications to and from the Governor’s Office” and that the circuit court didn’t provide any evidence for finding the working papers exemption “inapplicable.” In addition, the state says it is entitled to the presumption that the government conducts searches for records “in good faith.”
The 10 transparency groups in their amici brief object to those arguments, writing that the working papers exemption “was not codified to absolutely insulate the executive from transparency and, thus, from accountability.”
“If there were no such limits on the executive’s ability to assert the exemption, officials would be free to invoke the exemption in perpetuity across the entire government, simply by establishing pro forma procedures that make officials within the Office of the Governor party to any official correspondence or document,” the groups wrote. “The upshot would be freedom to thwart the legislature’s intent in enacting VFOIA: using the Working Papers Exemption to fully withhold information that is merely embarrassing or reveals malfeasance, mismanagement, and waste.”
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“Other details haven’t been released. A special session of the General Assembly will be needed to pass what budget negotiators have agreed on.”
