Tuesday, May 21, 2013

On FOIA and the Attorney General

My old blog friend Waldo Jaquith has been in the news lately in connection with the claim stated on a response he received from the Virginia Attorney General that Virginia's Freedom of Information Act may not apply at all to the Attorney General, citing the 2011 decision by the Virginia Supreme Court in Christian v. State Corporation Commission. In that case, the Supreme Court gave three reasons why, despite the broad definition of "public body" in FOIA, the State Corporation Commission was not included. One of those reasons was the idea that the SCC derives its authority to act from the Virginia Constitution, rather than the legislature, suggesting sort of a separation-of-powers issue. The Court cited Connell v. Kersey, a 2001 case in which the Court held that a Commonwealth's Attorney was not subject to FOIA, explaining that the language of FOIA refers only to "entities to which responsibility to conduct the business of the people is delegated by legislative or executive action. By contrast, a Commonwealth's Attorney derives his or her authority from the Constitution." Along somewhat similar lines, the Court held in Taylor v. Worrell Enterprises, that the Governor could not be required by legislative act to provide certain records.

Interestingly, the General Assembly took action to overrule Connell, by chapter 393 of the 2002 Acts of the Assembly, which amended the definition of "public body" with the addition of this sentence: "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." In this act, the General Assembly expressly declared its intent to "address the recent Virginia Supreme Court holding in the case styled Connell v. Kersey, which held that attorneys for the Commonwealth are not 'public bodies' as defined in the Freedom of Information Act (§ 2.2-3700 et seq.), by clarifying that the Freedom of Information Act (FOIA) applies to constitutional officers and providing an exemption for attorneys for the Commonwealth." It is not obvious to me how the separation-of-powers rationale from Connell survives this amendment as to whatever is included within the term, "constitutional officers." In cases such as Blair v. Marye, 80 Va. 485 (1885), the Supreme Court has explained that the Attorney General is a "constitutional officer." In addition, the Supreme Court has already held that the Virginia Constitution "unequivocally permits the General Assembly to prescribe the duties of the Attorney General." Wilder v. Attorney Gen. of Virginia, 247 Va. 119, 127, 439 S.E.2d 398, 403 (1994). Unlike the SCC, FOIA includes several exemptions that expressly reference the records of the Attorney General.

In fact, the Attorney General never used the legal argument that his office is not subject to FOIA to avoid responding to FOIA requests, and has now abandoned that argument altogether. The Christian case provided a good-faith basis for raising the point, but it is not obvious that the weight of authority would place the Attorney General in the position of the SCC as opposed to other "constitutional officers."