On Monday, the Circuit Court for the City of Richmond ruled in favor of the Competitive Enterprise Institute (CEI) after a hearing in Chris Horner and CEI v. Mark Herring, a case filed against the Virginia Office of Attorney General (OAG) under Virginia’s Freedom of Information Act (FOIA).
The hearing involved Attorney General Herring’s effort to evade CEI and Horner’s FOIA suit and discovery seeking an OAG analysis claiming that it has the legal authority to enter into a remarkable arrangement with a group underwritten by billionaire climate activist Michael Bloomberg, the “State Energy & Environmental Impact Center.” In its September 15, 2017 application for a privately funded “Special Assistant Attorney General” to pursue the donor’s agenda on climate change, OAG even stated, point blank, that private funding would “allow General [sic] Herring to participate much more fully in cooperative efforts to advance the agenda represented by” the Bloomberg group (emphasis added).
In the same application, Herring’s office claimed it had reviewed Virginia’s laws and ethics requirements and found no problems with this arrangement, and that it possesses the necessary legal authority. However, Virginia’s Code not only does not authorize such a deal, but prohibits it. As such, Horner and CEI sought the records underlying this assertion. OAG insists it has none.
OAG’s position, now, must be either that a single attorney prepared the eye-opening claim of legal authority on behalf of the Attorney General, without producing any supporting analysis or record of consultation with his client, even though this runs contrary to a plain reading of state law; alternatively, OAG did prepare analysis of how this scheme squares with the law but does not want to disclose its existence on the grounds that it would be exempt under FOIA anyway. That latter position, if it is indeed OAG’s, is also plainly contrary to Virginia law.
OAG asked the Court to dispose of the case, on the grounds that saying it has “no records” should be a sufficient answer. Horner and local counsel Graven Craig successfully argued such a decision would short-circuit their right to discovery and trial about which of OAG’s conflicting positions — telling Bloomberg’s they’ve examined the law, and CEI that they have no such analysis — is the true and accurate position.
At Monday’s hearing Horner noted:
- The Virginia Code and OAG’s Special Counsel Policy make clear that records should exist.
- OAG’s own, written words suggest that records do exist (the Bloomberg “application”).
- The Virginia Rules of Professional Conduct suggest that records had better exist.
“Today the Court rightly ruled that Attorney General Herring and his staff must not be permitted to avoid legitimate scrutiny under Virginia’s FOIA law by simply asserting ‘Trust us,’” said Horner. “Unfortunately, as we informed the Court, this OAG has a history of providing false ‘No Records’ responses when records do in fact exist. ‘Trust me’ fails as a general proposition — it is why Virginia's legislature provided for judicial review under its FOIA law. It is particularly inappropriate when considering this matter, involving the potential outsourcing of the use of a state law enforcement office to special interests.”
These are issues for discovery and trial, which day’s proceeding sought to avoid. The Court ruled in CEI’s favor, and now the case will proceed.
Horner and CEI ask the Court to order OAG to:
- Perform a proper search for responsive records, as inarguably is required by statute, which Petitioners allege was not performed (See, Petition ¶¶ 13, Prayer for Relief);
- To produce responsive records, and;
- Following the statute, identify what it withholds and the exemption under which it seeks to withhold them, subject to any legitimate exemptions.