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VPM News v. Virginia Department of Education

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  1. Freedom of Information

Case Number: CL22001654-00

Court: Circuit Court for the City of Richmond

Clients: VPM News, Ben Paviour

Petition for Writ of Mandamus Filed: April 13, 2022

Background: On Jan. 15, 2022, his first day in office, Virginia Gov. Glenn Youngkin issued several executive orders, including one directing the superintendent of public schools to ban the teaching of “inherently divisive concepts,” including Critical Race Theory, in K-12 schools across the Commonwealth.

Three days later, Ben Paviour, a reporter for Virginia NPR and PBS affiliate VPM News, submitted a request to the Virginia Department of Education under the state’s Freedom of Information Act seeking records related to the governor’s executive order.

A public records officer for the department disclosed some records but withheld others, claiming they were exempt from disclosure under a provision of the law that shields “[w]orking papers and correspondence of the Office of the Governor.” Among the records withheld by the department was a memorandum from the governor’s office that a recipient described as including written instructions for carrying out the executive order.

Paviour contested the Department of Education’s decision not to disclose the document, arguing that it could not be withheld under the “working papers” exemption. Though the record was distributed beyond the governor’s office and seemingly contains a set of instructions for the department, department officials stood by their decision to keep the record secret.

On behalf of Pavior and VPM News, Reporters Committee attorneys filed a lawsuit against the Department of Education for unlawfully shielding the record from the public in violation of Virginia’s Freedom of Information Act. The lawsuit asks the Circuit Court for the City of Richmond to order the Department of Education to immediately produce the contested document for the court to review privately and then order the government to either disclose the record in full or provide an explanation for why any portion of the record should be withheld under an applicable VFOIA exemption.

Quote: “The public has a right to know how the government is carrying out an executive order that’s been the subject of intense public interest since Gov. Glenn Youngkin signed it on his very first day in office,” said Lin Weeks, a staff attorney for the Reporters Committee for Freedom of the Press. “That’s why Virginia’s open records law exists: so communities can access information about how their government is operating, be more informed and hold public officials accountable.”

Update: On April 19, the Virginia Department of Education turned over the record it previously withheld from VPM News. As VPM News reporter Ben Paviour reported, the document provides instructions for state agencies to respond to Gov. Glenn Youngkin’s executive orders, including one banning Critical Race Theory in Virginia’s public schools. In a letter to Reporters Committee attorneys, Virginia’s deputy attorney general said the decision to release the requested record was discretionary, not mandatory. Reporters Committee Staff Attorney Lin Weeks told VPM News that the document “should never have been withheld in the first place.” But, he added, “we’re glad the Department of Education has released the record without the need for a court hearing and now provided the transparency required under the law.”

Filings:

2022-04-13: Petition for writ of mandamus

2022-04-13: Brief in support of petition for mandamus

2022-04-13: Paviour affidavit

2022-04-13: Exhibit A

2022-04-13: Exhibit B

2022-04-13: Exhibit C

2022-04-13: Exhibit D

2022-04-13: Exhibit E

2022-04-19: Letter from deputy attorney general

2022-04-19: Executive order instructions