The Washington Post

Cuccinelli drops FOIA claim, says it didn’t match office practice

Virginia Attorney General Ken Cuccinelli speaks after his nomination as the Republican candidate for governor of Virginia. (Steve Helber/AP)

Virginia Attorney Gen. Ken Cuccinelli II is dropping his assertion that the Office of the Attorney General is exempt from state public records laws, indicating in a statement Monday that he had asked staff attorneys to stop including the claim in their responses to requests for records from his office.

The office has never stopped responding to requests for documents, which a spokesman said Friday number in the hundreds each year.

But staff lawyers had begun to insert a footnote into responses indicating that a 2011 court ruling that exempted the State Corporation Commission from Virginia’s Freedom of Information Act also applied to Attorney General’s Office.

The footnote indicated that a “good faith” argument could be made that the office responded to FOIA requests merely as a “courtesy.”

Open government advocate Waldo Jaquith and the Roanoke Times had both said they received replies to requests for records recently that included the footnote.

Cuccinelli, who has promised an open and transparent government as he campaigns for governor, had come under fire from Democrats as it became public that his office was asserting a new claim that it was exempted from the law.

Except in specific instances, Virginia’s Freedom of Information Act requires that records of public bodies should be available to the public.

Cuccinelli said Monday that he had asked his staff to stop inserting the footnote into their FOIA responses, concerned it would be difficult for the public to understand why the office would argue FOIA does not apply to the office even as it fully complied with the law.

He said lawyers were “diligently attempting to preserve any potential legal arguments this office may have based on a 2011 Supreme Court case” by inserting the footnote.

However, he said its inclusion “has created confusion” and “does not comport with the office’s practice of fully complying with FOIA.”

The Supreme Court ruled in 2011 that the State Corporation Commission was exempt from FOIA because it was created by the Virginia Constitution rather than the legislature and therefore was not considered a public body for the purposes of the law.

The court has made the same ruling about the local commonwealth’s attorney offices and Gottstein had said that Cuccinelli believed that by the same logic, his office was exempted from the law.

Rosalind Helderman is a political enterprise and investigations reporter for the Washington Post.



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