Some information used to guide executions in Virginia does not have to be released to the public, the state Supreme Court ruled Wednesday, in a decision that could have far-reaching ramifications for transparency in the commonwealth.
The court ruled that manuals used to outline execution procedures, including sensitive security materials, are exempt from Freedom of Information Act requests and do not have to be redacted and partially released.
The decision reverses an opinion by then-Fairfax County Circuit Judge Jane Roush, who ordered last year the release of the information, including execution manuals and a schematic of the chamber in which executions are carried out. Death penalty opponents have been trying for years to obtain details of the state’s lethal injection procedures, amid national concern over the kinds of drugs being used.
The court found that the security concerns raised by the state are legitimate, and that Virginia law regarding security exemptions says nothing about a requirement to redact such documents.
“We give deference to the expert opinions of correctional officials charged with maintaining the safety and security of their employees, the inmates, and the public at large,” Justice Cleo E. Powell wrote for the majority.
The circuit court was ordered to reconsider the release of several other documents involving prison floor plans and the wiring and operation of the electric chair.
Lawyers for the state had argued that specifics regarding the transfer of prisoners to the execution chamber, floor plans and other details could be exploited by prisoners or protesters.
“This case is not about Virginia trying to keep its execution protocols secret,” said Assistant Attorney General Margaret O’Shea. Instead, she argued, it was answering this question: “Does the Department have to eviscerate the security of a maximum security prison?”
Del. Scott Surovell, (D-Fairfax County), a criminal defense attorney who brought the case, said he was concerned by the broader impact of the decision.
“What they’ve done here is really scary,” Surovell said. “They’ve incentivized government officials to sprinkle so-called ‘safety provisions’ in any records they don’t want the government to see, and they’ve also directed the courts that they have to give great deference to government officials about what documents the government officials want to produce.”
Transparency advocates agreed.
“Citizens should be wary of this opinion because it sets up the possibility that a record that is undeniably a public record can nonetheless be withheld if they throw in some bit that could be exempt,” said Megan Rhyne of the Virginia Coalition of Open Government.
Judge William C. Mims, who dissented, likewise warned during oral arguments that future government documents might include a “poison pill” to shield them from FOIA.
An attorney for the Department of Corrections responded that it was up to the General Assembly to change the law to address that concern. An advisory council is reviewing exemptions in the state’s FOIA.
Roush, now on the state Supreme Court, did not weigh in on the case, because she ruled on the case as a circuit court judge, ordering the release of the documents. In that ruling, she found that there was “not a bona fide security concern” regarding anything other than the process of transferring an inmate from a cell to the execution chamber.
A Corrections Department spokeswoman hailed the ruling, saying it “addresses the department’s security concerns.”