Virginia Attorney Gen. Ken T. Cuccinelli (R) has asserted that the state’s freedom of information laws do not apply to the Office of the Attorney General, a break from past practice.
While Cuccinelli’s office has continued to respond to requests for documents under the law — which says that except in certain instances, all records of public bodies should be accessible to the public — it has begun to insert new language into its responses citing a 2011 Virginia Supreme Court case to support the claim that the law does not apply to the office.
Senior Assistant Attorney General James E. Schliessmann indicated in a letter last week to one recent FOIA request lodged by open government advocate Waldo Jaquith that a “good faith argument” could be made that the office responds to FOIA inquiries merely as a “courtesy.”
The Roanoke Times reported Sunday that it too had recently received a FOIA response from the attorney general that asserted the FOIA does not apply to the office.
In a statement, Cuccinelli spokesman Brian Gottstein said the office is “committed to transparency, which includes complying with the protocols of FOIA.”
He said the office responds to each request it receives, numbering in the several hundred each year.
But he confirmed that Cuccinelli’s position is that the court ruling means that FOIA does not apply to constitutional offices, which include the attorney general.
“In our responses to requests, we provide boilerplate information referencing Christian v. SCC merely to inform requestors that — while we are voluntarily supplying the responsive documents — in no way are we waiving any legal argument we may make in court about FOIA’s inapplicability to constitutional offices,” Gottstein said.
In the 2011 case, the Virginia Supreme Court ruled that because the State Corporation Commission is created in the Virginia Constitution and does not derive its authority from the legislature, it is not a “public body” and is exempt from FOIA law.
The court noted it had previously ruled that Commonwealth Attorney’s offices also were exempt from the law for the same reason.
Gottstein said the position of the office’s lawyers is that since the Office of the Attorney General is also created by the constitution, the same ruling would apply to its work.
In an interview Friday, Jaquith dismissed that notion. He noted that the General Assembly has provided specific exemptions to the law to protect some papers of the attorney general’s office from public review. Why would the legislature outline specific exemptions for the office, he reasoned, if it did not intend for the statute to otherwise apply?
“Given that, it just seems like a crazy assertion that FOIA doesn’t apply to them,” said Jaquith, who launched the Web sites Richmond Sunlight and Virginia Decoded to help citizens better access data about their government.
He received his FOIA response as he prepared to attend the annual convention of the National Freedom of Information Coalition this weekend.
The attorney general’s office has not always held that FOIA did not apply to it. As of Sunday morning, the office’s Web site offered a tip sheet on “Rights and Responsibilities” of Virginia residents under the Freedom of Information Act, which provides guidance on how to file a FOIA request with the office.
In a section entitled “the office’s responsibilities in responding to your request,” the tip sheet indicates that the office must provide responsive documents to requests, outlining the specific exemptions named in the law that make only some records off-limits.
Jaquith’s FOIA request sought records showing when employees of the Office of the Attorney General had attended ethics training.
Virginia law requires that all state agencies conduct “semi-annual orientation courses on ethics in public contracting as well as any other applicable regulations governing the conduct of state officers and employees.”
It also requires that state agencies maintain records of when employees receive such training for five years and release them to the public upon request.
Given the recent controversies over gifts provided by Star Scientific Inc.’s chief executive to Gov. Robert F. McDonnell (R) and Cuccinelli, Jaquith said he thought it might be useful to know when employees had received training that could help avoid ethical entanglements. He said he filed a similar request with the governor’s office, which has not yet responded.
“I thought it would benefit them to provide this, so that when there are accusations of impropriety, the OAG office can say, ‘Listen, we provide extensive ethics training,’ ” Jaquith said.
In his response, Schleissmann said the office is not considered a “state agency” for the purposes of the law and so it did not have any documents to release about when employees had received training.
In a statement, Gottstein said that while the law does not apply to the attorney general’s office, “standard conflict of interest training” is provided to every attorney. He said the training is “consistent with the practice of past administrations.”