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Department of Education hands over record after Reporters Committee files lawsuit

Tall building with parking structure
The James Monroe Building in downtown Richmond, which houses the central office for Department of Education staff. (Photo: Crixell Matthews/VPM News)

The Virginia Department of Education handed over a file on Tuesday related to Gov. Glenn Youngkin’s first executive orders. State officials had previously blocked the file from public release.

The Reporters Committee for Freedom of the Press filed a lawsuit earlier this month on behalf of a VPM News reporter who sought a record that VDOE claimed was exempt from public release. In their petition, the committee’s lawyers argued the department didn’t have legal grounds to withhold the file. The withheld email attachment, called “EA_Instructions,” lays out guidance from the Youngkin administration to top state officials on how to enforce 11 executive orders signed on his first day in office, Jan. 15.

Despite its label as the “confidential working papers of the governor,” the unredacted file doesn’t include substantially new information. It assigns specific tasks laid out in the executive orders to each state agency. For example, the document instructs the Superintendent of Public Instruction to “review all policies within the Department of Education to identify those that promote inherently divisive concepts” – language that appears verbatim in the original executive order.

A hearing in the case had been set for Monday, April 25, in Richmond Circuit Court. In a letter to the Reporters Committee on Tuesday, Deputy Attorney General Steven Popps said instead of going to court, the Department of Education would hand over the file.

“In providing this document, Respondent specifically does not waive any arguments or defenses and, in fact, maintains that the Attachment is exempt from mandatory disclosure, and was properly withheld,” Popps wrote in a letter to Reporters Committee lawyer Lin Weeks. “However, in the interest of resolving this matter, Respondent has elected to exercise its statutory discretion to disclose the Attachment, notwithstanding its status as a working paper of the Office of the Governor.”

Weeks said in a statement that the document “should never have been withheld in the first place.”

“Still, we're glad the Department of Education has released the record without the need for a court hearing and now provided the transparency required under the law," Weeks said. 

In their initial rejection of the public records request, VDOE officials cited state code that allows the governor to shield public records “prepared by or for a public official identified in this subdivision for his personal or deliberative use.” In their petition, the Reporters Committee said VDOE had failed to prove the record was exempt under state code.

Further public records requests filed by VPM News showed the file had been forwarded among staff at the department after it was originally sent by Ali Ahmad, Youngkin’s policy director. Those requests also show that VDOE officials consulted with the attorney general’s office in deciding to withhold the record from VPM News.

VPM News Director Elliott Robinson called the outcome of the lawsuit a “positive step in upholding Virginia freedom of information laws.”

“While the case may have been resolved in our favor, VPM News will strive to continue to provide factual coverage of our communities while holding necessary parties accountable when such rights are violated,” Robinson said in a statement.

The Youngkin administration is still facing a lawsuit from a range of media organizations, including NPR, seeking submissions to his so-called tipline created for parents. Youngkin blocked the information, claiming the working paper exemption. The administration also blocked VPM News’ attempt to see a log of public records requests it received.

The Richmond Times-Dispatch also sued the Department of Education seeking emails the department withheld involving communication with officials working for the American Enterprise Institute. A judge ordered the department to hand over additional information on the emails earlier this month and the department compiled on Monday.

Megan Rhyne, executive director of the Virginia Coalition for Open Government, said her interpretation of state code was that documents shared with other agencies and employees in those agencies are no longer protected as the governor’s working papers.

“But even assuming that the record was correctly withheld to begin with, I am glad to see the AG’s office turning it over,” Rhyne said in an email. “I’d hope it sets an example that says discretion should be exercised more often to disclose records that could arguably be exempt.”