Virginians who run into Joseph Migliozzi ought to stop and thank him. The Norfolk circuit judge recently ruled in favor of open government — a stand that puts him athwart the Supreme Court of Virginia.
In a case brought by the Virginian-Pilot, Migliozzi ruled that rudimentary information about law-enforcement officers — their names, employers, and hiring and departure dates — is subject to the state’s Freedom of Information Act.
Lawyers in the office of Attorney General Mark Herring argued that the information was exempt. This is an odd stand for the AG to take: Whatever the legal arguments might be, Herring made it clear in the debate over Virginia’s marriage amendment that he is more interested in upholding broader principles.
But Herring is not alone. The Supreme Court of Virginia recently has demonstrated a remarkable tendency to favor government secrecy over public information.
In one instance, the court’s Office of the Executive Secretary has refused to make available a comprehensive database of public court records, for a variety of reasons ranging from the contrived to the ridiculous. When the Daily Press printed a story based on more than 100,000 case records it compiled with the help of Code for America, an employee of the court then had the nerve to criticize the story for not being based on the comprehensive data it refuses to release.
The state’s highest court recently took an even more alarming step. In a case brought by state Sen. Scott Surovell, who wanted to learn more about Virginia’s execution methods, the high court ruled that the Department of Corrections could withhold its entire execution manual — rather than release it with sensitive information redacted. The court reached that conclusion despite acknowledging the legislature’s “strong preference for disclosure” in FOIA, in part because it felt obliged to defer to the agency’s own assertions about what was and was not good for the agency. As Surovell puts it, “they’re saying just trust the government” — when the whole point of FOIA is that the citizens shouldn’t.
As justices Bill Mims and Bernard Goodwyn noted in partial dissent, this means that “if a requested record contains a single sentence” exempt from FOIA, “then a public body is authorized to withhold that entire record.” How that can square with a strong preference for disclosure is anyone’s guess.
Fortunately, Surovell and some of his colleagues, including Del. James LeMunyon and Sen. Richard Stuart, think the court’s woeful decision necessitates a rewrite of FOIA to prevent agencies from withholding documents wholesale.
Fixing the law, however, still might not fix the problem with the state’s high court. The concept of checks and balances is fundamental to America’s notion of good governance. But it means little if the judicial branch will not check assertions of unbridled authority by executive agencies — or its own.