Kenneth A. Letzler July 31, 2013 Kenneth T.

Cuccinelli, II Attorney General Commonwealth of Virginia Office of the Attorney General 900 East Main Street Richmond, VA 23219 Re: FOIA Request Denial, Your letter Dated July 19 Dear General Cuccinelli:
This responds to your letter dated July 19, 2013, (postmarked July 22) denying in most respects my FOIA request dated June 28 (received by your office July 1). 1. At pages 2 and 3, you deny part (ii) a of my request on the purported ground that the Office of the Attorney General is not classified as a state agency for purposes of Virginia Code 2.23128 and hence the premise of [the request] is inapplicable to this Office . . . . Please reread my request. 1 Its sole premise is that one or more officers and/or employees of the Office of the Attorney General is required to make filings under the Conflict of Interests Act,
1

The request calls for: (ii) any records related to a. The training or orientation of officers and/or employees of the Office of the Attorney General who have or are required to make filings pursuant to the State and Local Government Conflict of Interests Act, Chapter 31 of Title 2.2 of the Code of Virginia (the Act) as to the requirements of or compliance with i. the Act, and/or ii. any other applicable regulations that govern the official conduct of state officers and employees, including without limitation the materials used in the training or orientation and records indicating the specific attendees, each attendee's job title, and dates of their attendance for each training or orientation course offered. If attendees acknowledged in writing that they had received such training or orientation, please produce those documents. Response to this request need not include training or orientation that relates to the obligations of lawyers generally under the Virginia Rules of Professional Conduct adopted by the Virginia Supreme Court and that does not include training or orientation on the requirements of the Act.

something that is surely the case given that part A of Code of Virginia 2.2-3114 provides that The . . . Attorney General, . . . and other persons occupying such offices or positions of trust or employment in state government . . . shall file, as a condition to assuming office or employment, a disclosure statement of their personal interests and such other information as is specified on the form set forth in 2.2-3117 and thereafter shall file such a statement annually on or before January 15. (Emphasis added). The request relates to the training or orientation that such filing officers and employees receive, whether or not that training is required by Virginia Code 2.2-3128. The premise of your denial is inapplicable to my request. Please provide the requested materials. 2. At pages 3 and 4, you discuss my request (ii) b. Your footnote 14 explains at some length that no search was undertaken for the category of responsive documents that relate to the subject matter because the Attorney Generals Office lacks the kind of document management systems typically found in law firms and businesses, and hence such an effort would be time consuming and potentially expensive, involving a manual search of every personal computer in the office. You nowhere explain, however, why a low tech, low cost alternative was not considered or used. For example, an email to all employees or attorneys asking them if they were aware of any documents responsive to this part of my request would be quick and inexpensive. Is there a reason this kind of effort at compliance was not or should not be undertaken? 3. Your response to part (ii) c of my request asks at page 4 that I provide the news report referred to in the request. That news report can be found in the Washington Post of May 19, 2013, available at http://www.washingtonpost.com/local/va-politics/cuccinelli-says-attorneygenerals-office-is-exempt-from-virginia-public-records-laws/2013/05/19/52684cd4-c0a2-11e2ab60-67bba7be7813_story.html?hpid=z8 . The full text of the article is attached, but the last paragraph is the pertinent part. It states: In a statement, Gottstein said that while the law does not apply to the attorney generals office, standard conflict of interest training is provided to every attorney. He said the training is consistent with the practice of past administrations. 4. In response to request (ii) d, you volunteer at page 4 that The Offices position is consistent with previous administrations but then state that As of May 15th . . . [responsive] records [that would bear on this assertion] could not be found or do not exist . . . . Please excuse me if I am unduly suspicious, but this is the only portion of your response that limits the search to

documents that existed as of a particular date, and there is no basis in the request 2 for such a limitation. Given those facts, one understandably wonders if this wording was chosen to avoid producing responsive records that were created between May 15 and the date of my request (June 28) or the date your reply was prepared (July 19) or mailed (July 22), or if the wording was chosen to mask the fact that responsive records existed prior to May 15 but were destroyed before that date. Please produce responsive documents without an arbitrary date limitation and advise whether you are aware of responsive documents destroyed prior to May 15.

Sincerely Yours,

Kenneth A. Letzler

Attachment

This request identifies a position taken by your office on May 15, but the request for documents is without date limitation. The request calls for: Any records that support or refute or otherwise relate to the assertion in your May 15 letter that the position taken in the letter as to the applicability of 2.2-3128, 2.2-3129, or 2.2-3130 is consistent with previous administrations.

Attachment: News Report, Washington Post

Cuccinelli says attorney generals office is exempt from Virginia public records laws
By Rosalind S. Helderman, Published: May 19 E-mail the writer
Virginia Attorney Gen. Ken T. Cuccinelli (R) has asserted that the states freedom of information laws do not apply to the Office of the Attorney General, a break from past practice. While Cuccinellis office has continued to respond to requests for documents under the law which says that except in certain instances, all records of public bodies should be accessible to the public it has begun to insert new language into its responses citing a 2011 Virginia Supreme Court case to support the claim that the law does not apply to the office. Senior Assistant Attorney General James E. Schliessmann indicated in a letter last week to one recent FOIA request lodged by open government advocate Waldo Jaquith that a good faith argument could be made that the office responds to FOIA inquiries merely as a courtesy. The Roanoke Times reported Sunday that it too had recently received a FOIA response from the attorney general that asserted the FOIA does not apply to the office. In a statement, Cuccinelli spokesman Brian Gottstein said the office is committed to transparency, which includes complying with the protocols of FOIA. He said the office responds to each request it receives, numbering in the several hundred each year. But he confirmed that Cuccinellis position is that the court ruling means that FOIA does not apply to constitutional offices, which include the attorney general. In our responses to requests, we provide boilerplate information referencing Christian v. SCC merely to inform requestors that while we are voluntarily supplying the responsive documents in no way are we waiving any legal argument we may make in court about FOIAs inapplicability to constitutional offices, Gottstein said. In the 2011 case, the Virginia Supreme Court ruled that because the State Corporation Commission is created in the Virginia Constitution and does not derive its authority from the legislature, it is not a public body and is exempt from FOIA law.

The court noted it had previously ruled that Commonwealth Attorneys offices also were exempt from the law for the same reason. Gottstein said the position of the offices lawyers is that since the Office of the Attorney General is also created by the constitution, the same ruling would apply to its work. In an interview Friday, Jaquith dismissed that notion. He noted that the General Assembly has provided specific exemptions to the law to protect some papers of the attorney generals office from public review. Why would the legislature outline specific exemptions for the office, he reasoned, if it did not intend for the statute to otherwise apply? Given that, it just seems like a crazy assertion that FOIA doesnt apply to them, said Jaquith, who launched the Web sites Richmond Sunlight and Virginia Decoded to help citizens better access data about their government. He received his FOIA response as he prepared to attend the annual convention of the National Freedom of Information Coalition this weekend. The attorney generals office has not always held that FOIA did not apply to it. As of Sunday morning, the offices Web site offered a tip sheet on Rights and Responsibilities of Virginia residents under the Freedom of Information Act, which provides guidance on how to file a FOIA request with the office. In a section entitled the offices responsibilities in responding to your request, the tip sheet indicates that the office must provide responsive documents to requests, outlining the specific exemptions named in the law that make only some records off-limits. Jaquiths FOIA request sought records showing when employees of the Office of the Attorney General had attended ethics training. Virginia law requires that all state agencies conduct semi-annual orientation courses on ethics in public contracting as well as any other applicable regulations governing the conduct of state officers and employees. It also requires that state agencies maintain records of when employees receive such training for five years and release them to the public upon request. Given the recent controversies over gifts provided by Star Scientific Inc.s chief executive to Gov. Robert F. McDonnell (R) and Cuccinelli, Jaquith said he thought it might be useful to know when employees had received training that could help avoid ethical entanglements. He said he filed a similar request with the governors office, which has not yet responded. I thought it would benefit them to provide this, so that when there are accusations of impropriety, the OAG office can say, Listen, we provide extensive ethics training, Jaquith said.

In his response, Schleissmann said the office is not considered a state agency for the purposes of the law and so it did not have any documents to release about when employees had received training. In a statement, Gottstein said that while the law does not apply to the attorney generals office, standard conflict of interest training is provided to every attorney. He said the training is consistent with the practice of past administrations.