AGO hiding at least four contracts giving other states’ AGs veto power over Virginians’ right to see Virginia public records, claiming the secrecy pacts themselves are secret
CHARLOTTESVILLE, VA, April 29, 2020 – Today the public interest law firm Government Accountability & Oversight, P.C. (GAO) filed suit against the Virginia Office of the Attorney General (AGO) under Virginia’s Freedom of Information Act, on behalf of Commonwealth citizen and GAO board member Chris Horner. The lawsuit, filed in the General District Court for Albemarle County by GAO attorney and board member Matthew Hardin, aims to compel the AGO to release several secrecy pacts with other state AG’s offices by which it claims to have contracted its way out of the legal obligation to provide the public with their own records.
On April 2, 2020, Horner requested any common interest agreement signed in 2019 or 2020 by Environmental Section Chief Paul Kugelman, Jr. AGO took an extension of ten business days before denying the request in full, withholding every word of every such agreement. Remarkably, Virginia’s AG stated that “The Office has identified approximately four (4) records responsive to your request. These records, in their entirety, constitute attorney-client privileged communications and/or attorney work product.”
The complaint notes that those privileges in Virginia exempt “advice of legal counsel”, “mental impressions” and “legal memoranda,” none of which the request sought. Also, Horner “only requested signed agreements, not draft or other inchoate records. Thus, the responsive records can only possibly include contracts to which the Commonwealth is a party. Having entered into contracts to deprive the citizens of Virginia of access to their own records, OAG now wants to keep the citizens from seeing the secrecy contracts as well.”
Hardin, a former Commonwealth’s Attorney for Greene County, VA, previously won several open records cases fighting “a bogus effort” by Vermont’s AGO to hide records from the public on the same topic, also including a similar secrecy pact, to which Virginia AGO was also a party (the New York courts rightly acknowledged that purported common interest agreement was no such thing, and not privileged, in Competitive Enterprise Institute v. The State of New York. N.Y.App.Div., 161 A.D.3d 1283 (2018), 76 N.Y.S.3d 640).
About that earlier pact also joined by Virginia, Vermont’s Deputy AG Scot Kline had written to New York’s AGO expressing concern over the AG offices adopting “an affirmative obligation to always litigate” record requests looking into their efforts. The actions prompting today’s suit prove that AGO concluded that releasing records about its political alliances poses the greater risk, making requesters file suit after – as other public records show – contracting to give other states’ AG offices a veto over the release of Virginia records.
About today’s suit Hardin noted, “The Attorney General is improperly hiding contracts with other states, entered into on behalf of Virginia’s citizens yet designed to hide otherwise public records from Virginia’s citizens. The notion that a public office can shield from the public a contract, particularly one purporting to create a double wall of secrecy allowing that office to shield still more records from the public, has no support in Virginia’s or any other law.”
“The public has a right to know how its institutions are being used, and what contracts it enters into in the public’s name,” said Hardin. “AGs have tried to hide these same kinds of secrecy pacts in the past and failed. This instance should prove no exception.”
Government Accountability & Oversight is a 501(c)3 non-profit organization dedicated to transparency in public officials’ dealings on matters of energy, environment and law enforcement