Editorial: Open government takes a one-two punch from Virginia courts

July 7, 2017
Bob Brown
Richmond Times-Dispatch

It’s been a rough time lately for the cause of government transparency in Virginia.

First, the Virginia Supreme Court ruled against the Newport News Daily Press and its supporters (including BH Media Group, which owns the Richmond Times-Dispatch and other Virginia newspapers). The Daily Press wanted records from a database kept by the court’s own Office of the Executive Secretary, which compiles information from local clerks of court. The Virginia Supreme Court said those courts are the official custodians of the records, so the newspaper would have to ask them for the information.

A few days later, Henrico Judge James Yoffy made a draw-jopper of a ruling when he declared that the state’s Freedom of Information Act doesn’t apply to state lawmakers. A Loudoun County resident had submitted a FOIA request for state Sen. Siobhan Dunnavant’s social-media records. Yoffy ruled that Dunnavant didn’t have to respond because the FOIA law applies to public bodies, and she isn’t one — and never mind the law’s plain text, which guarantees “the people of the commonwealth ready access to public records in the custody of a public body or its officers and employees” (emphasis added).

To be fair to the Virginia Supreme Court, its ruling is at least defensible, and the most desirable way to win what the Daily Press seeks might be to have the General Assembly rewrite the law.

Yoffy has no excuse. And while he probably reached his conclusion in all sincerity, it will do nothing to assuage the concerns of those who have long expressed doubts about the way judges in Virginia are appointed: by the legislature. In effect, Yoffy was asked to rule in a dispute between a private citizen and a member of the body that gave him his job.

Cases like that put judges in an unenviable position, and sow suspicion that, while probably meritless, undermines confidence in government institutions. Chalk it up as one more case study illustrating the need to change the judicial-selection process in Virginia.