Execution records appeal leads to ruling limiting Virginia FOIA disclosures

A recent ruling by the Virginia Supreme Court in a death penalty records case could jeopardize many more open records requests under the Virginia Freedom of Information Act, after the court held that a government agency can withhold an entire document if any portion is exempt and would have to be redacted.

The case started with a victory in Fairfax Circuit Court for Del. Scott A. Surovell (D-Fairfax), who had requested information from the Department of Corrections about the state's methods for executions and the facilities where they are conducted. The department appealed, and the state Supreme Court ruled that state law does not require officials to redact documents. If information in a document is exempt from disclosure, the court said, the entire document can be withheld.

The Virginia FOIA states that a public official “may delete or excise only that portion of the record to which an exemption applies and shall release the remainder of the record.”

However, the state Supreme Court ruled, the plain meaning of the language, specifically the word "may," does not create any requirement for partial disclosure after redaction.

Virginia Coalition for Open Government Executive Director Megan Rhyne said she was “very disappointed.”

“I fear that the language in this ruling will become a license to withdraw records,” she said.

VCOG, which filed an amicus brief, stressed the broad significance of this case, noting that a ruling like this “could essentially eliminate the impact of VFOIA simply by creating documents that include a combination of public and exempt information.”

Rhyne said this decision is in line with the government and the Court’s recent direction toward secrecy in government. She said at least six opinions by the Court in the past five years have been in favor of the government’s position. Earlier this year, the Virginia FOIA Council shot down a proposal to add criminal penalties to VFOIA violations.

“We need to bring people’s attention on things like this,” Rhyne said.

The case also raised the question of how exemptions under FOIA should be invoked.

The corrections department claimed that public release of the information “could” jeopardize execution facility security as some might attempt to harm execution teams or inmates. Surovell challenged the department’s argument, saying the threat is merely speculative and that the department should be required to prove that the release of the information “would” harm the security.

Surovell argued that past FOIA Advisory Council opinions that have established a duty of public agencies to redact, and noted that the General Assembly has said that the FOIA be “liberally construed” to promote government openness.

The Court concluded the department’s classification of the information was reasonable enough given the expertise and added, “any agency statement of threatened harm to security will always be speculative to some extent.”

Other states have faced several cases challenging state secrecy surrounding execution procedures.

In 2013, Georgia postponed an execution for convicted prisoner Warren Lee Hill because a local judge held the Lethal Injection Secrecy Law, which kept execution drug information from the public, unconstitutional. Oklahoma too delayed executions for Richard Glossip in 2014 and Charles Warner in 2015 to reexamine drugs that would be used to conduct executions.

The Reporters Committee for Freedom of the Press earlier this year sent a letter to urge the Virginia House of Delegates to reject a secrecy bill that would shield crucial information about execution drugs, pharmacists and manufacturers. If the bill passes, Virginia will join Arkansas, Georgia, South Dakota and Tennessee in making execution information secret.