This week Virginia Supreme Court protected various materials and execution manuals from public access. This decision has wider implications in respect of public access to a host of government records not related to the death penalty in Virginia. With The decision in many instances local and state officials do not have to comply or release any government records or death records pertaining to the death penalty if those records are lawfully exempt from release.

The question is as to an agency’s requirement to redact exempt government records that may well contain material that is non exempt. It was agreed that agency’s are not required to redact information under such circumstances. Freedom of Information advocates rued the decision and feared officialdom within government will seek to deny access to government records solely due to minor inclusions. The Open Government Executive says the decision goes against a fundamental principle of freedom of information.

The case revolves around the execution protocols in Virginia. A floor plan of the execution chamber was requested along with certain manuals and schematics of the electric chair. Government records officials put forward that making these available would have compromised security and further argued that the state should not have to make available redacted copies. The opinion of the high court appears to suggest that if relevant areas of The Freedom of Information Act (inclusive key phrases) state agencies have no obligation to redact government records. It was noted that only 4 Freedom of Information exemptions included both key phrases. Over 30 but not quite all use as a minimum one.

At the moment it seems to soon as to how future requests for government records would be treated post decision. The court has said that officials reserve discretion over the release of sensitive government records. There is an argument that has prevailed that officials don’t have discretion to release exempt government records under The Freedom of Information Act when the law confirms the opposite. Virginia state’s FOI Council is half way through a mandatory 3 year review of the FOIA laws within Virginia. The new opinions and legislation will form part of the study.

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