united states project

Virginia reporters school state officials on open records laws

October 20, 2015

State officials in Virginia scrambling to keep documents from the press. The governor’s office directing an agency to misrepresent open records laws. Local reporters pushing back at agency flacks about how to interpret those laws. And a response to a big Freedom of Information Act request from a newspaper that exposed how it all went down behind the scenes.

That’s what readers got yesterday in a story by Patrick Wilson of The Virginian-Pilot. It’s a piece that shows how public officials can skirt open records laws, but also highlights how pressure from journalists who know the law–and their unwillingness to accept unsatisfactory responses—can result in the release of information.

The backstory: In March, a black student named Martese Johnson was arrested by white Alcoholic Beverage Control officers in a Virginia college town. Videos of the arrest, with blood streaming down Johnson’s face as he loudly called the officers racists, went viral. The incident sparked campus protests at the University of Virginia in Charlottesville and a broader public backlash. Gov. Terry McAuliffe, a Democrat, declared that an investigation would get to the bottom of what happened. Charges against Johnson were eventually dropped. And months after the arrest, following a review by the Virginia State Police that determined the officers hadn’t violated policy, the officers involved were headed back to work.

At the same time, Alcoholic Beverage Control officials in August refused to release a 119-page report on the incident and the officers’ conduct, saying that “Virginia law prohibits disclosure of personnel files.”

In a blog post for The Virginian-Pilot at the time, Wilson called that explanation “off base.” Nothing in Virginia law prohibits state agencies from releasing personnel information if they want, he reported, though nothing mandates it, either—it’s at their discretion to do so.

“That’s a key point for the public to be aware of in these situations,” Wilson wrote. “The government agency could release the report, but is choosing not to.”

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He didn’t leave things there. Disturbed by the official statements, Wilson crafted an open records request “in a way that I could find out what went on behind the scenes,” he told me. He wanted to know if someone else, higher up, was behind the decision to mischaracterize the law.

“I figured it was [the ABC’s] top person or an attorney for them but wondered if it was a higher level,” he said.

Yesterday, he published the results of his request, which cost the paper $338 to obtain. It turns out that the alcohol agency, in its initial draft statement on the officers’ return to work, didn’t say the report would be released—but it described the law correctly. It was the governor’s office that revised the statement to misstate the law and say release of the report was prohibited—essentially, an “our hands are tied” claim. Not only that, the office directed the agency not give the media anything more than they already had about the investigation.

Documents from the response to Wilson’s FOI dump also show something else: a press corps willing to call BS on state officials. When the ABC’s statement came out, according to Wilson’s story, “reporters pounced.” From the article:

Travis Fain of the Daily Press wrote: “I think you guys are wrong about that, and it’s a discretionary exemption, not a prohibition against release. I’d love to see where you guys see different.”

Associated Press veteran Larry O’Dell wrote to ABC communications director Becky Gettings, saying the law gave her agency the choice. “Based on that, I’d like to request that ABC exercise its discretion to release the state police report…. And if disclosure is prohibited by some other law, can you please cite the specific code section?

Gettings eventually agreed that release was discretionary and said the report was being withheld. But she was then ordered to tell reporters she was mistaken. 

Other reporters who pressed the agency to clarify why exactly it was keeping the information secret included Tucker Higgins from the student newspaper at the College of William & Mary, and BuzzFeed’s David Mack. The behind-the-scenes pushback was accompanied by news accounts of the agency stonewalling reporters; that led some lawmakers to publicly call for the governor’s administration to release the report.

And eventually, the critics got results: in September, the governor’s office released a partially redacted version of the report.

“The main reason they did that was media pressure,” Wilson says.

Corey Hutchins is CJR’s correspondent based in Colorado, where he teaches journalism at Colorado College. A former alt-weekly reporter in South Carolina, he was twice named journalist of the year in the weekly division by the SC Press Association. Hutchins writes about politics and media for the Colorado Independent and worked on the State Integrity Investigation at the Center for Public Integrity; he has contributed to Slate, The Nation, the Washington Post, and others. Follow him on Twitter @coreyhutchins or email him at coreyhutchins@gmail.com.