The Virginia Freedom of Information Act (“VFOIA”), located at § 2.2-3700 et seq. of the Code of Virginia, “ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted.” VFOIA § 2.2-3705.7 lists “[e]xclusions to application of [VFOIA]” and § 2.2-3705.7(2) includes “[w]orking papers and correspondence of the Office of the Governor …”.

The Commonwealth of Virginia, et al. (“Appellants”) have filed an appeal in the Court of Appeals of Virginia challenging the Circuit Court of Arlington’s overruling of Appellants’ demurrer and its grant of a petition for mandamus and injunctive relief to Heather Sawyer (“Appellee”). As described in the briefs, Petitioner/Appellee Heather Sawyer (who, according to Appellee, is a Virginia citizen and the Executive Director of American Oversight, a non-partisan, non-profit organization “committed to promoting transparency in government”) submitted a series of requests for records under VFOIA, two of which are at issue in the case:

1.) General Communications: (a) Communications about the “Tip Line” between persons inside the Office of the Governor and (i) persons outside of government or (ii) Commonwealth employees outside of the Office of the Governor, and (b) records about the “Tip Line” made available to (i) persons outside of government or (ii) Commonwealth employees outside of the Office of the Governor (Request 758). [The “Tip Line,” also referred to in the briefs as the “Help Education Email Address” was created to allow parents and others to report on the teaching of “inherently divisive concepts” in Virginia public schools.]

2.) Specific Communications: (a) Emails between specifically identified government officials and specifically identified non-governmental individuals/organizations, and (b) emails sent by (or at the request of) specifically identified individuals containing certain key terms (the listed terms included, “CRT,” “Critical Race Theory,” “helpeducation@governor.virginia.gov,” and “inherently divisive practices”) (Request 759).

Brief of Appellants

In their first assignment of error, Appellants argue that the Circuit Court of Arlington (hereinafter, the “Circuit Court”) erred in overruling the demurrer because the petition did not sufficiently allege a cause of action under VFOIA; that “the documents at issue are exempt from disclosure because they are correspondence and working papers of the Governor’s Office”; that the correspondence and working papers exemptions “reflect the General Assembly’s recognition of constitutional limits on its ability to invade the confidentiality of the Governor’s communications”; that “[r]equiring disclosure of such correspondence and deliberations could impair the ability of the executive to perform his constitutionally required duties”; that VFOIA neither contains a “requirement that the documents must personally reflect the work of the specified high-ranking officials, nor does it state that the correspondence must be sent only from or to those officials”; that Appellee “did not plead facts showing that the withheld documents fall outside the correspondence and working papers exemptions”; that Appellee “failed to state a claim that the Governor’s Office conducted an inadequate search in response to Request 758”; and that the Circuit Court should have applied the presumption that public officials obey the law.

In their second assignment of error, Appellants argue that even if Appellee’s “petition stated a claim under [V]FOIA sufficient to survive demurrer, the [C]ircuit [C]ourt had no factual basis for holding that the Governor’s Office violated [V]FOIA”; that the Circuit Court “should have held further evidentiary procedures to determine whether the Governor’s Office properly withheld the documents under the correspondence and working papers exemptions”; that “[w]ithout examining the documents or ordering other evidentiary proceedings, the [Circuit Court] had no factual basis for holding the Governor’s Office violated [V]FOIA”; that “[t]he Governor’s Office did not have the burden of affirmatively proving that it complied with [V]FOIA in its demurrer”; and that given the far tighter deadlines set by VFOIA (compared to federal FOIA), the federal-style detailed, document-by-document response that Appellee proposes is not feasible.

Appellee’s Response Brief

In her Response Brief, Appellee argues that “public bodies are required to conduct reasonable searches, and requestors are entitled to challenge the reasonableness of searches where, [the public body has] alleged facts giving rise to an inference that the search failed to return expected records”; that “[t]he presumption of good faith owed the government does not prevent a petitioner from ever asking a court to review a public body’s compliance with its search responsibilities, nor [does it] absolve the government of any obligation to explain how it [conducted the search]”; that “[a] search may be inadequate for reasons having nothing to do with a public official’s motivation”; that “[Appellants’] search appears to have been inadequate under the circumstances”; that “[t]he public body is the party in sole possession of information about how it conducted the search [and f]lipping that burden of proof to the requestor would nonsensically require the requestor to prove a negative”; and that “[n]either [of the differences between VFOIA and federal FOIA] explains why it would be inappropriate to use similar evidentiary procedures [as federal FOIA] once in litigation.”

On the issue of application of the working papers and correspondence exemption, Appellee argues that “the mere fact that a record has been sent to one of the listed officials qualifying for the [correspondence portion of the] Exemption is not enough to establish the record as protected correspondence”; that “to properly withhold a record under the [correspondence portion of the] Exemption, the agency must show that it is (a) from an official covered by the Exemption, or (b) to—and only to—a person or persons covered by the Exemption”; that “Legislative restrictions on executive functions are not automatic violations of separation of powers”; that “[t]he ‘Working Papers’ portion of the Exemption also only covers the material of certain individuals, and only if that material is ‘deliberative’”; that “[w]ith respect to the [working papers] portion, the Governor’s Office may withhold otherwise deliberative information shared with lower-level officials not covered by the Exemption so long as it demonstrates that the information remained in the zone of privacy of a covered official”; that “[Appellee] adequately pleaded that the Exemption does not validly apply to the withheld records”; and that “because the hearing was on the merits of the Petition as well as the Demurrer, the Governor’s Office was required to meet its burden to demonstrate compliance with VFOIA in the hearing in case the Demurrer was denied” [and the Governor’s Office] “failed to offer any appropriate evidence that the [working papers and correspondence] Exemption applied to the withheld records.”

Reply Brief of Appellants

In their Reply Brief, Appellants argue that “[t]he Governor’s Office … had no evidentiary burden prior to the court’s ruling on the demurrer … [y]et the [C]ircuit [C]ourt … granted the petition immediately after denying the demurrer, with no evidentiary hearing at all”; that “the bare order stating the hearing would be ‘on the Petition and Demurrer,’ did not give notice that it would constitute the only such hearing”; that in camera [italics added] review is a proper method to determine whether withheld documents are exempt”; that the “Governor’s Office explained at the hearing that the review could be of ‘some or all of the records,’ and it asked the court for a further hearing on the ‘proper procedure’ for the review”; and that the Circuit Court “had no grounds to instead refuse to consider the evidence at all.”

Appellants argue further that “[t]he Governor’s correspondence is no less his correspondence if a staff member or aide also receives it, or assists the Governor in preparing a response”; that “requiring public disclosure of the Governor’s correspondence would compromise the executive’s consultation and decision-making process and have a chilling effect on communications, to the detriment of the decision[-]making process”; that no statutory language or Virginia precedent supports the argument that the government bears the burden of demonstrating a search was reasonable; and that just because a court can assess the reasonableness of a search “does not mean that the petitioner bears no pleading burden on this issue.”

The Reporters Committee Amicus Brief

The Reporters Committee for Freedom of the Press (the “Reporters Committee”) and nine media and transparency organizations submitted an amicus brief in support of Appellee. The amicus brief argues that “when it is clear from the terms of a request that responsive records are held by those outside the small group of executive officials named in [VFOIA], a trial court is well within its discretion to find that those records are not personal or deliberative”; that “Appellee’s requests, by their terms, were limited to records that do not necessarily implicate the Working Papers Exemption”; that “the plain language of [VFOIA] does not permit application of the Working Papers Exemption to all correspondence to and from every employee of the Governor’s Office … [n]or does the exemption, by its plain terms, apply to any and all records that cross the desk of any individual within the Office of the Governor”; that the General Assembly deliberately placed the burden on agencies to demonstrate compliance with VFOIA and that the presumption that public officials have complied with VFOIA—a presumption that, if not overcome, would justify granting a demurrer—does not exist; that “[b]ased on the wording of Appellee’s requests, which ultimately sought records outside the scope of the Working Papers Exemption … the Circuit Court had a sufficient basis to decide as a matter of law that all responsive records should be disclosed”; and that without a narrow interpretation of VFOIA’s exemptions from disclosure, “government officials would be free to circumvent public oversight and avoid accountability for malfeasance and mismanagement.”

[Citations and some internal quotations omitted from the summaries of the briefs.]

Conclusion

Regardless of the circumstances, merits and outcome of this particular appeal, three points are clear: 1.) A robust VFOIA benefits the people and commerce of Virginia; 2.) The parameters of an adequate and lawful VFOIA search are woefully underdefined in Virginia law; and 3.) For the purposes of ensuring justice, promoting judicial efficiency and improving transparency, it is incumbent upon the courts to follow procedure, to communicate accurately and completely with the parties during litigation, and to enunciate the bases and reasonings for their decisions.

The case is Commonwealth of Virginia, et al. (Appellants) v. Heather Sawyer (Appellee); Record No.: 0330-23-4; Court of Appeals of Virginia.

Last Updated on September 12, 2023 by Ramin Seddiq