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Va. Supreme Court hears FOIA issues in executions case

The case, brought by Del. Scott Surovell, stems from his push to access state execution records, including manuals that detail execution protocols and technical details behind the state’s electric chair

electricchair-2.jpg

The Virginia Electric Chair stands ready in front of the witness box in the basement of the Virginia State Penitentiary cellblock A in Richmond, Virginia on August 9, 1982.

AP Photo/Steve Helber

By Travis Fain
Daily Press

NEWPORT, Va. — Virginia’s highest court heard arguments Wednesday in a case that could change the state’s open records laws.

The case, brought by Del. Scott Surovell, stems from his push to access state execution records, including manuals that detail execution protocols and technical details behind the state’s electric chair. But once Supreme Court justices hash out the Virginia Department of Corrections’ refusal to release a number of records over security concerns the case may set a broader precedent.

Supreme Court Chief Justice Donald W. Lemons added extra time to oral arguments Wednesday, citing the “great public interest” in this case. He also boiled down the issue at hand: What duty do state agencies have to redact, but still release, records, as opposed to refusing their release altogether?

The department argues that a security exemption in the state’s Freedom of Information Act not only allows it to withhold documents, but the exemption’s wording imparts no duty to provide as much as information as it can – by redacting key details – without sacrificing security.

Assistant Attorney General Margaret O’Shea, who argued the department’s case Wednesday, said “common sense” dictates that the state shouldn’t release information about shift changes or floor plans for its executions facility at Greensville Correctional Facility. She told Supreme Court justices that the department acted in good faith when it withheld documents that Surovell requested.

Justice William C. Mims told her that’s not the underlying issue.

“We’re not writing only for this case,” he said. “We’re writing for the future.”

Lemons said that, without a duty to redact, agencies could bury otherwise public information simply by lumping it in with secure information.

The court likely won’t announce any ruling until September, and Surovell, D-Mount Vernon, said he couldn’t read how the court is leaning based on Wednesday’s questions. He filed his case, he said, after the department refused to provide the General Assembly with information about lethal injection drug supplies.

The legislature has debated a number of death penalty issues in recent years, including unsuccessful legislation to make the electric chair the state’s default execution if lethal injection drugs prove too difficult to obtain. Current law allows the condemned to choose between the two methods.

The Department of Corrections pushed during the last session for legislation to keep secret the drugs used in lethal injections, as well as the names of the companies that make or mix them. The bill failed in the House of Delegates.

A Circuit Court judge has already ordered the Department of Corrections to release information in the Surovell case, but the department appealed. Mims noted Wednesday that the state’s Freedom of Information Advisory Council, which offers advice based on state records laws, has also backed the duty to redact.

O’Shea said that, if the General Assembly intended agencies to redact information when they withhold documents under FOIA’s security exemption, the it should rewrite that part of the law. Other sections of the code refer to portions of records, but this section doesn’t, she said.

The state is in the midst of a three-year review of its FOIA law, focused largely on the act’s numerous exemptions. Thus far the subcommittees reviewing these exemptions have not backed significant changes.

The review’s final report is due to the General Assembly Dec. 1, 2016.

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