VIRGINIA’S SUPREME Court has just handed a ringing victory, and a misguided one, to champions of secrecy in government. In doing so the court has misread the clear intent of state law and signaled its contempt for the public’s legitimate interest in obtaining information about the workings of state agencies.
The ruling, in a case pitting a state lawmaker, Del. Scott A. Surovell (D-Fairfax) against Virginia’s Department of Corrections, involved Mr. Surovell’s request for information under the state’s Freedom of Information Act, which has the explicit purpose of facilitating the release of information to the public, with certain discrete exemptions.
Mr. Surovell sought documents related to procedures and facilities used for carrying out the state’s death penalty. A Fairfax Circuit Court judge — Jane Marum Roush, who has since been elevated to the state Supreme Court — ordered the material released. The state appealed, arguing that the information’s release could jeopardize security at the state’s death chamber, and the Supreme Court mostly agreed.
In siding with the state, however, the court went so far overboard as to effectively neuter Virginia’s Freedom of Information Act. A majority of the justices said that if the material requested contained even a scrap of information exempt from disclosure under the FOIA, then officials, rather than simply redacting the exempt bits, could refuse disclosure entirely.
That’s absurd, as a respected judge, former attorney general William Mims, made clear in a partial dissent. If there is no valid reason to shield the main body of requested information from disclosure, Justice Mims said, then a state agency “must release the requested record, and it may redact the exempt information in its discretion.”
The court also erred on the side of secrecy in government — in contravention of the FOIA’s stated purpose — by saying that government officials deserve “deference” about what to exempt from disclosure. Even a passing familiarity with some bureaucrats’ penchant for gratuitous secrecy over-classification — in Washington, as in Richmond — would expose the danger of automatically granting such deference.
Virginia already has a well-deserved reputation as among the least open and accountable state governments; notoriously, three-quarters of the bills defeated in House of Delegates committees and subcommittees got no recorded votes this year, according to a report from the group Transparency Virginia. The court’s ruling will only further entrench that reputation for government-behind-drawn-curtains.