Cuccinelli’s self-inflicted FOIA gunshot wound.
This time last week, I got a surprise in the mail. A couple of weeks prior, I had sent requests to both the governor and the attorney general’s offices for some pretty boring records—a list of everybody in their offices who had received the ethics training prescribed under the law. These records are explicitly FOIAable, so I anticipated that I’d just get an Excel file e-mailed to me before long. I wasn’t looking for anything in particular, but the FBI probe into Bob McDonnell and Ken Cuccinelli’s relationships with Star Scientific made me wonder if the proper ethics training had been provided. Five business days later, both offices got back to me saying that they’d need another five days. No problem. Then, last Thursday, I got home to find a letter in the mail from Cuccinelli’s office. Busy packing for a flight the next day, I didn’t get around to reading it until late at night, just before bed. This was the letter:
I found the letter difficult to understand, in part because of the lateness of the hour, but on the third reading, I figured it out. The attorney general’s office was claiming that a) they did not need to offer ethics training b) they did not need to comply with FOIA. Having no idea of how to respond to this, and knowing I’d have no time to deal with it for at least five days, I simply scanned in the document, posted it to DocumentCloud, tweeted about it, and went to bed.
It quickly emerged that I was not the only person to be told by the OAG that they were complying with FOIA only as a matter of courtesy, I was merely the first person to tweet about it. Roz Helderman wrote about the matter for the Washington Post, and David Ress wrote about it for the Roanoke Times. (The Times had also been told by the AG’s office that FOIA didn’t apply to them.) These stories were published on Sunday, the same day that the prior day’s Republican convention was on the front page. What should have been a day full of post-convention-bounce news, helpful to the newly minted nominee for governor was, instead, marred by coverage of Cuccinelli’s extraordinary claim. The timing by Cuccinelli’s office was amazingly bad.
Editorial boards were unanimous in their response.
So how did the attorney general’s position seem ironic? Let us count the ways:
A believer in original intent is ignoring the plain meaning of the law.
To do so, he rests his case on an appeal to judicial authority that he shows little regard for in other cases — such as Roe, Kelo, or the Supreme Court’s 2012 ruling upholding Obamacare.
He thereby seems to suggest a state agency with a staff of dozens and a budget of $36 million has to disclose less than, say, a researcher at the University of Virginia whose work has been questioned by right-wing activists. Cuccinelli spent two years and untold sums trying to pry loose the private correspondence of climatologist Michael Mann. Poor Mann — if only he had had the presence of mind to claim he was, like the AG’s office, not a “public body.”
Virginia’s top lawyer is not above the law. Nor is Attorney General Ken Cuccinelli just doing his constituents a favor when he responds to requests for public records.
Cuccinelli’s startling epiphany that he is exempt from the Freedom of Information Act came at a convenient moment. He is running for governor while being pelted with questions about his relationship with a businessman who has a pending dispute over state taxes.
It was tempting for Cuccinelli to slather himself in a potent Scandal Proof Formula to shield himself from the state sunshine law.
To truly appreciate the absurdity of the legal argument, consider this: The public-records law that staff members in Attorney General Ken Cuccinelli’s office said did not apply to the attorney general specifically mentions the office four times.
[Their] explanation is ludicrous, its reasoning so twisted that it can only be understood through its ultimate goal: To deny requests made by this paper’s sister publication, The Roanoke Times, and others for office records and correspondence involving a company entangled in a federal investigation and multiple lawsuits, including one against the state.
It’s no wonder Virginia received an “F” grade from the State Integrity Investigation, a watchdog organization that monitors the risk of government corruption in each of the 50 states. While Virginia ranks 12th in the nation in population, it ranks 47th in the organization’s key measures of government transparency. The Attorney General’s policy shift demonstrates what can happen when a weak FOIA law combines with an insipid judicial precedent: We get a culture of need-to-know governance that undermines citizen access and decreases government accountability.
To be clear, the logic employed by the OAG (constitutional officers don’t have to comply with FOIA) is total nonsense. In § 2.2-3701—the definitions that establish the application of terms for the entire chapter about FOIA—this is made explicit:
For the purposes of the provisions of this chapter applicable to access to public records, constitutional officers shall be considered public bodies and, except as otherwise expressly provided by law, shall have the same obligations to disclose public records as other custodians of public records.
The legal argument, however, was never there, which is why no one in or out of state government could offer any defense for it.
“It’s news to me,” said Maria J.K. Everett, executive director of the Virginia Freedom of Information Advisory Council.
The council, a state-created entity, includes a representative from the attorney general’s office.
On Monday, in Richmond, he was notably quiet during a council subcommittee meeting to discuss FOIA exemptions.
[T]he Attorney General’s office maintains a FOIA page on its website that advises citizens: “You have the right to request to inspect or receive copies of public records, or both.” The page outlines detailed instructions for how to request information from the AG’s office, along with a list of the AG’s responsibilities — such as “the Office must respond to your request within five working days of receiving it.”
In brief, this is not a matter on which intelligent minds may disagree. It’s a silly claim, and I find it baffling that the AG’s office would make it, especially when not actually refusing to release any information. Nothing is gained by this, and, as OAG discovered, much stood to be lost.
So it didn’t come as a great surprise when Ken Cuccinelli issued a statement backing down—just a bit—from his office’s position. As Roz Helderman wrote for the Post, the OAG is no longer going to inform people that they don’t believe that FOIA applies to them. So Cuccinelli still believes that he’s FOIA-exempt. But he’ll keep responding to FOIA requests, apparently out of the goodness of his heart.
In the end, I’m not sure that it matters what Cuccinelli believes he’s obliged to do, as long as he actually complies with the law.
So here I am, a week later, and I still don’t have an answer to the boring question that I posed in the first place: Is the attorney general’s office providing ethics training to its employees? I’m coming at the question from a different angle now, having asked the governor’s office for related records, and I hope to find out the answer. It doesn’t strike me as a very interesting question—I figure that, whatever the response, it’ll merit a tweet and a blog entry consisting of sharing that response. I wish I knew what all the fuss was about.