At a hearing in Richmond, Virginia on Tuesday — the third hearing in a (so far) two-and-a-quarter year saga to obtain records that previously did not exist but now magically do — the Office of the Virginia Attorney General was ordered to file an answer in a November 2018 VFOIA lawsuit by Government Accountability & Oversight board member Chris Horner and the Competitive Enterprise Institute.
That suit requested records related to AG Mark Herring’s rather fevered, successful — and then suddenly dropped — pursuit of Michael Bloomberg-funded “Special Assistant Attorneys General” “to advance the agenda represented by” Bloomberg’s climate group.
After a January 2019 hearing on the AG’s first filing, a demurrer, the AG was ordered to answer the complaint. He did not, instead creating something the judges (and counsel) admitted they’ve never seen in this context, a “Plea of Nulla Bona.” After two more hearings on that tactic, last November and this week, the AG has again been ordered to answer a complaint he and his Office clearly do not want to go any further.
During this extended delay, Horner learned through limited discovery that the OAG indeed did have many more records responsive to Horner’s October 17, 2018 request for all records relating to the pursuit of a NYU Fellow(s), which it had not turned over.
In response to follow-up requests pursuing hints obtained in that discovery which has occurred so far, the plaintiffs have also learned that OAG for some reason declined even to ask certain parties integrally involved in the process to search for responsive records…even the official in charge of the participation. Meanwhile, the OAG’s cries of having produced everything and that this suit should just go away became more insistent.
The newly surfaced records include an entire folder of emails segregated by OAG’s Donald Anderson, which contents Mr. Anderson testified in a deposition he turned over to the FOIA officer. The FOIA officer did not produce these to Horner/CEI. She instead continuously and wrongly insisted she had provided all records.
That folder’s contents which previously did not exist have now largely been turned over, in response to those follow-up requests. The AG is claiming four of these records not only exist but, to keep them from the public, are exempt from release as his “working papers”.
At the January 2019 hearing, in response to a direct question by the judge, OAG stated there were no working papers.
Mr. Anderson’s testimony also yielded the existence of a responsive “GOLD Decision Memorandum” explaining the plans for these “SAAGs”. That document not only previously did not exist, but according to OAG it is yet another “working paper” that also previously did not exist but anyway now that it does the public cannot see it.
That and the other claimed “working papers” are now the subject of a followup suit by Horner — given OAG’s insistence first that these did not exist and, now, that they were not covered by the earlier requests which are the subject of this suit.
Back to the original questions, Mr. Anderson did also reveal how — if not fully why — at some point after FOIA requests began coming in OAG did a complete reversal and backed out of its agreement developed in writing over months with Bloomberg’s group…over the phone.
Apparently, a supervisor who is no longer with the Office came into Anderson’s Office and told him to pick up the phone, call Bloomberg’s group, and back out.
This was approximately eight months after the Office was approached with the offer of lawyers and PR if they would press harder on liberal priorities, seven months after it applied, and four months after the deed was agreed. No explanation apparently offered. Mr. Anderson testified that this supervisor “was not a fan” of the scheme. Unrelated, FOIA requests also had kept coming in asking for the record of the dalliance.
CLW will stay on top of these proceedings and any further inventive pleas tossed out to avoid allowing the FOIA suit to get “at issue”.