FROM: The Free Lance-Star
BY: Dick Hammerstrom
VIRGINIA Gov. Terry McAuliffe did not list transparency as a major theme in his campaign for the top elected office in the state. Of course, as any governor-elect would, he told reporters that he planned to run “an open and transparent administration.” But that’s essentially a perfunctory response to a reporter’s question. In the two and a half years since he took office, his administration has shown much more opacity than clarity.
There are several conspicuous examples.
Last year, state Alcoholic Beverage Control agents arrested a black University of Virginia student in a violent confrontation outside a bar in Charlottesville. The student was left bleeding during the arrest, which was captured on cellphone cameras. An investigation by the state police cleared the agents, and ABC officials wanted to release the results of the investigation to the public. But McAuliffe blocked it, saying that the state Freedom of Information Act barred the release of personnel information it contained.
That is factually incorrect. FOIA does not ban the release of any information. It says information can be released but that an exemption can be claimed. Eventually, the report was released, but the exercise showed that this administration misapplied FOIA and thought little of keeping its constituents informed.
Example No. 2 deals with McAuliffe’s zeal for secrecy about the death penalty and how it’s carried out in the state.
McAuliffe, as a Catholic, has professed his opposition to the death penalty, but realizes as governor he must not interfere on the basis of religion. Still, McAuliffe supported legislation last year that would maintain nearly total secrecy about executions in the state, including where the lethal injection drugs came from, how they were being administered and “all information relating to the execution process.”
The bill was too broad and didn’t pass, but this year a bill did pass, which McAuliffe amended to keep secret the source of any drugs used in executions. That drew protests from hundreds of religious leaders in the state. They argued the action lacked transparency and integrity.
McAuliffe also threatened to amend a bill that would require government agencies to redact only exempted material from public records and release the rest of the record. But he eventually decided not to, probably because the bill had strong support in both the House and Senate and his amendment would be rejected.
And the latest example of McAuliffe’s lack of transparency is the manner in which he attempted to automatically restore the civil liberties of more than 200,000 felons in Virginia who had served their time and satisfied any probation or other type of supervision in the criminal justice system. The entire planning took place behind the scenes and the public, including members of the General Assembly, did not learn of it until the governor announced it.
To be clear, restoring a felon’s rights—including the right to vote or serve on juries—is one of the most beneficial actions a governor can undertake. I applaud the governor for his intentions. I personally know people who have had such rights restored and went on to successful professional careers. In this instance, however, the attempts at secrecy resulted in slipshod work. Some of those who have regained their rights are in prisons for other charges or still on probation. And 132 convicted sex offenders are being held on civil commitments in a state facility.
Legislators, particularly the Republicans, were furious and McAuliffe refused to identify the felons and what crimes they committed. He claimed an exemption, calling the list “working papers.” That exemption, which state legislators also can use, covers records prepared by or for the chief executive “for his personal or deliberative use.” Well, this list is not for McAuliffe’s personal use and it seemed any deliberations about restoring rights are in the past. And, according to an opinion from the Virginia Freedom of Information Advisory Council, it has “been previously well-established by both the Office of the Attorney General of Virginia as well as this office that the working papers exemption no longer applies after a document has been disseminated beyond the office of the chief executive.”
Therefore, any document labeled as a working paper would no longer be afforded the protection of the exemption once it was shared with an outside party.” The names of the felons apparently have been shared with commonwealth’s attorneys, corrections officials, probation and parole officials, registrars, court clerks and probably others.
So, it’s questionable again whether McAuliffe, or his legal staff, has a keen knowledge about Virginia’s law that says “The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government.”
In fact, if the governor needs some FOIA advice it’s right there in Richmond’s Capitol Square on the sixth floor of the General Assembly Building. The Virginia Freedom of Information Advisory Council has been around since 2000 and its job is provide opinions and help the public and government officials understand FOIA.
That’s just a short walk for you, governor, and it just might help your legacy.
Dick Hammerstrom, a retired editor, is vice president of the Virginia Coalition for Open Government and chairman of the FOIA Committee of the Virginia Press Association.