Virginia Gov. Terry McAuliffe (D) has dropped — at least for now — his opposition to legislation aimed at ensuring that government agencies don’t withhold public records in their entirety in cases where a portion of those records are exempt.
McAuliffe spokesman Brian Coy said the governor plans to sign a bill meant to overturn a state Supreme Court ruling that open-government advocates say could make a wide range of public documents secret.
But the administration, which believes that the ruling is much narrower, may try to limit the effect of the bill by amending an identical version working its way through the legislature.
Although Virginia’s Freedom of Information Act makes government budgets, reports and salaries open to the public, other information — such as personnel records and trade secrets — is exempt.
In September, the commonwealth’s high court ruled that the Department of Corrections did not need to partially release materials related to Virginia’s execution procedures because portions were exempt from disclosure.
Justice William C. Mims, in a dissent, wrote that the ruling could lead government agencies to deliberately include exempt information in their records solely to shield those records from public view.
Transparency advocates said they shared that concern.
The legislation, which sailed through the General Assembly, would make clear that agencies have the responsibility to redact private information rather than suppress entire records when parts are exempt from disclosure.
It was sponsored by Sen. Scott A. Surovell (D-Fairfax), a first-term senator and former delegate who was the plaintiff in the lawsuit over execution records.
McAuliffe initially proposed referring the matter for a study by the Freedom of Information Advisory Council, which had backed Surovell’s bill.
His aides said the administration was concerned that the legislation could have unintended consequences, such as creating a larger workload for agencies and driving up the costs of document review.
“Really, this is a pretty wonky legal disagreement. Our interest in this is not in transparency or lack thereof,” Coy said. “It could have the unintended effect of making it harder to access public information, or at least more expensive.”
Surovell said the bill shouldn’t lead to an overhaul of government practices because all it does is undo any changes made after his case. He noted that no state agencies other than the Department of Corrections had raised concerns during committee hearings.
Neither he nor other advocates could point to examples of government agencies using the court ruling to withhold entire records.
Roger Wiley, a lobbyist for the Virginia Municipal League and the Virginia Association of Counties, said local governments already believe it’s their duty to redact exempt information rather than withhold entire records.
Coy said the governor will sign the bill as submitted but may seek further changes by amending an identical bill working through the General Assembly. That bill is being treated by the governor’s office as a vehicle for revisions.
Surovell said he is open to tweaks but not a wholesale rewrite, as the governor originally proposed.
“I’m glad he recognized open government is important and we need to have a functional FOIA,” Surovell said.
“This bill strikes a perfect balance between redaction and disclosure.”