Virginia Supreme Court Opinion Affecting Local Government Law: September 17, 2015

By: Andrew McRoberts, Editor. This was posted Tuesday, October 6th, 2015

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The Virginia Supreme Court issued opinions on September 17, 2015 during its recent term.  This term resulted in one opinion affecting Virginia local government law, in the area of the Freedom of Information Act.  The opinion addresses the need – actually, the lack of a need – to redact documents when a portion of a document may be exempted from production under Virginia Code § 2.2-3705.2(6).  A dissent written by Justice Mims takes issue with the majority.  This opinion already been criticized by media sources such as the Washington Post and the Daily Press.

The case summary is taken from the Virginia Supreme Court opinions website. Click on the case number to read the opinion.

141780 Department of Corrections v. Surovell 09/17/2015 Under the Virginia Freedom of Information Act, Code § 2.2-3705.2(6) provides that certain records related to public safety are excluded from disclosure to the extent their production would jeopardize security of a governmental facility or the safety of persons using the facility. In a mandamus proceeding to review the refusal of the Virginia Department of Corrections to produce certain documents pertaining to various aspects of executions conducted in Virginia, the circuit court was required to give substantial weight to the agency’s evidence of security concerns, and this standard should have been applied with respect to several contested documents. Two “execution manuals” sought contain security protocols exempt from disclosure under the Code § 2.2-3705.2(6). This statute does not refer to production of “portions” of records, and therefore an agency is not required to redact an exempt document in that category that may also contain non-exempt material. The judgment of the circuit court is reversed and, with respect to several documents, the matter is remanded to the circuit court for further proceedings in accord with this opinion.

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