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The Commonwealth of Virginia v. Sawyer

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  1. Freedom of Information

Court: Virginia Court of Appeals

Date Filed: Aug. 7, 2023

Background: In 2022, Heather Sawyer, executive director of the nonprofit government watchdog American Oversight, submitted several Virginia Freedom of Information Act requests for records related to an email “tip line” Gov. Glenn Youngkin’s administration implemented as part of the governor’s efforts to end the use of what his office called “inherently divisive concepts” in state education.

In response, the governor’s office withheld several hundred pages of records, citing a provision of the state’s public records law that shields from disclosure working papers and correspondence of the governor’s office.

Sawyer then sued the administration, claiming that it failed to explain why the so-called “working papers” exemption applied to the withheld tip line records.

The governor’s office opposed Sawyer’s petition, claiming that it had failed to state a claim. However, a trial court in Arlington County, Virginia, ultimately sided with Sawyer, ordering the disclosure of the withheld records.

The governor’s office then appealed to the Virginia Court of Appeals.

Our Position: The appeals court should affirm the trial court’s ruling that Sawyer is entitled to the records under Virginia’s public records law.

  • The plain text and legislative history of the Virginia Freedom of Information Act, as well as applicable guidance from the VFOIA Advisory Council, support the trial court’s interpretation of the working papers exemption.
  • The trial court correctly refused to adopt an interpretation of the working papers exemption that would enable government agencies to shield communications having little or no connection to the purpose of the exemption.
  • If Appellants’ interpretation of VFOIA procedure is accepted, it will limit the public’s access to government records in contravention of the General Assembly’s intent.

Quote: “Under Appellants’ interpretation of the working papers exemption, employees within the Governor’s Office and those in other public agencies — even those not included among or corresponding directly with those officials within the statutory definition of ‘Office of the Governor’ — would be free to withhold information, merely based on habit, speculative risk, or fear of embarrassment. This result would render the statute toothless and undermine the public’s right of access to public records in the Commonwealth.”

Related: On behalf of VPM News and reporter Ben Paviour, Reporters Committee attorneys previously filed two separate lawsuits against the Virginia Department of Education seeking access to records related to Critical Race Theory and policies concerning transgender students. Both lawsuits challenged the government’s reliance on the working papers exemption to withhold the records. In the Critical Race Theory case, the Virginia Department of Education disclosed the record at issue after the lawsuit was filed. In the case related to transgender policy records, however, the Circuit Court for the City of Richmond ruled in favor of the Virginia Department of Education, finding that the records at issue were properly withheld.

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