V I R G I N I A IN THE CIRCUIT COURT OF FAIRFAX COUNTY SCOTT A. SUROVELL, ) ) Petitioner, ) ) v. ) ) Case No. VIRGINIA DEPARTMENT ) OF CORRECTIONS, ) ) Respondent. ) ) VERIFIED PETITION FOR WRIT OF MANDAMUS Petitioner Scott A. Surovell, by his undersigned counsel, pursuant to Va. Code Ann. § 2.2-3713, petitions this Court for a writ of mandamus directed to the Virginia Department of Corrections (“VDOC”), and in support thereof states: NATURE OF ACTION 1. The Virginia Freedom of Information Act, Va. Code Ann. § 2.2-3700 et seq. (“VFOIA”), establishes that the operations of the government shall not be conducted secretly. Public records are expected to be available for inspection and copying upon request, subject to certain narrowly-construed exemptions. 2. Petitioner requested documents pertaining to various aspects of executions conducted in Virginia from VDOC through the VFOIA process. 3. VDOC refused to produce numerous categories of documents, including the most crucial one: documents explaining the procedures for lethal injection and electrocution. 4. Upon information and belief, the written procedures for lethal injection and electrocution are within the discretion of the VDOC Director. Neither the process for developing
37
Embed
Lawsuit Filed By Virginia Del. Scott Surovell For Information On Virginia Execution Methods
Surovell, a Democrat from Fairfax County, filed this petition for a writ of mandamus in July 2014.
Welcome message from author
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
V I R G I N I A
IN THE CIRCUIT COURT OF FAIRFAX COUNTY SCOTT A. SUROVELL, ) ) Petitioner, ) ) v. ) ) Case No. VIRGINIA DEPARTMENT ) OF CORRECTIONS, ) ) Respondent. ) )
VERIFIED PETITION FOR WRIT OF MANDAMUS
Petitioner Scott A. Surovell, by his undersigned counsel, pursuant to Va. Code Ann. §
2.2-3713, petitions this Court for a writ of mandamus directed to the Virginia Department of
Corrections (“VDOC”), and in support thereof states:
NATURE OF ACTION
1. The Virginia Freedom of Information Act, Va. Code Ann. § 2.2-3700 et seq.
(“VFOIA”), establishes that the operations of the government shall not be conducted secretly.
Public records are expected to be available for inspection and copying upon request, subject to
certain narrowly-construed exemptions.
2. Petitioner requested documents pertaining to various aspects of executions
conducted in Virginia from VDOC through the VFOIA process.
3. VDOC refused to produce numerous categories of documents, including the most
crucial one: documents explaining the procedures for lethal injection and electrocution.
4. Upon information and belief, the written procedures for lethal injection and
electrocution are within the discretion of the VDOC Director. Neither the process for developing
2
these procedures nor the procedures themselves are published or made available to the public in
the normal course. VDOC’s responses to Petitioner’s VFOIA requests demonstrate VDOC’s
intent to purposefully withhold them from the public in their entirety.
5. VDOC principally shields its written procedures and other records with an
exemption intended for situations where disclosure would jeopardize the security of buildings or
persons.
6. For the reasons discussed herein, VDOC is abusing this exemption, and others, to
withhold documents in their entirety from the public.
7. Accordingly, Petitioner moves the Court to issue a writ of mandamus directing
VDOC to produce all improperly withheld records, as detailed below.
PARTIES
8. Petitioner is domiciled in Fairfax County, Virginia. Petitioner submitted the
requests for public records to VDOC in his name.
9. Respondent VDOC is a public body within the meaning of Va. Code Ann. § 2.2-
3701.
JURISDICTION AND VENUE
10. This Court has subject matter jurisdiction pursuant to Va. Code Ann. § 2.2-3713
because Petitioner was denied the rights and privileges conferred by the VFOIA.
11. Venue is proper in this county pursuant to Va. Code Ann. § 2.2-3713 because
Petitioner resides in Fairfax County.
3
FACTUAL BACKGROUND
A. The Virginia Code Affords VDOC Immense Discretion With Regard To Executions, With Little Visibility To The Public
12. The Virginia Code (the “Code”) is extremely vague regarding the procedure
through which the death penalty is carried out. The Code says only that “The Director [of the
Department of Corrections] … shall at the time named in the sentence … cause the prisoner
under sentence of death to be electrocuted or injected with a lethal substance, until he is dead ….
Execution by lethal injection shall be permitted in accordance with procedures developed by the
Department [of Corrections].” Va. Code Ann. § 53.1-234.
13. These “procedures developed by the Department” are not codified in the Code or
the Virginia Administrative Code. Nor does VDOC post its “procedures” on its website.
14. Upon information and belief, the VDOC Director has complete discretion to
design or alter details of the method of execution without notice, process, recourse, or review.
Because the public is unable to know the contours of the execution procedure, it also cannot
know when the process is altered and cannot comment upon or influence the procedures either
before or after they are adopted.
15. Upon information and belief, the VDOC Director has, in fact, altered the
execution procedure without notice, process, recourse, or review. For example, the media
recently reported that VDOC approved use of a new chemical, midazolam, for lethal injections.
See http://www.washingtonpost.com/local/virginia-politics/virginia-approves-new-lethal-
b14b-001a4bcf6878.html (attached hereto as Exhibit 3). The VDOC spokeswoman did not
disclose that VDOC actually expected to be able to perform executions by lethal injection when
necessary to do so because it had been purchasing drugs (midazolam) for a changed lethal
injection protocol.
17. This example of VDOC’s potentially misleading disclosure only highlights the
need for greater public scrutiny of the execution process. Despite having broad discretion in this
area, as a public body, VDOC should not have completely unfettered and unchecked power to
devise – and revise – the execution procedures for the Commonwealth. The VFOIA is therefore
a critical avenue for seeking information on VDOC’s execution operations so as to assure that
discretion is not abused.
18. VDOC’s secrecy is all the worse because midazolam has become a controversial
lethal injection drug. Midazolam has been used in several executions that have gone awry.
19. Midazolam was used in an Ohio execution, in January 2014, in which it took
twenty-six minutes for the inmate to die – the longest execution in the state since Ohio reinstated
1 The legislation was ultimately halted in the Senate. See http://www.washingtonpost.com/local/virginia-politics/virginia-electric-chair-bill-dies-for-the-year-in-state-senate/2014/02/10/ed6d1468-9260-11e3-b227-12a45d109e03_story.html (attached hereto as Exhibit 2).
5
the death penalty in 1999. See http://www.nytimes.com/2014/01/26/us/family-sues-in-
protracted-ohio-execution.html?_r=1 (attached hereto as Exhibit 4). The inmate “repeatedly
gasped and snorted” before his death. Id. The inmate’s family has since sued the drug
manufacturer, alleging that the prolonged execution constituted cruel and unusual punishment.
Id.
20. In April 2014, midazolam was used in an execution in Oklahoma that was
actually halted – though the inmate died forty-three minutes later from a heart attack. See
planned-execution/ (attached hereto as Exhibit 6). The inmate was determined to be fully
sedated at 1:57 p.m., but was not pronounced dead until 3:49 p.m. According to witnesses, the
inmate “gasped and snorted for much of that time before eventually dying.” Id. The inmate had
sought a stay of execution so that he could receive documentation regarding the drugs to be used
and the credentials of the medical team, but his stay was denied.2 See Ryan v. Wood, --- S. Ct. ---
-, 2014 WL 3600362 (Mem) (July 22, 2014). The prolonged execution has prompted the
2 The Ninth Circuit had previously stayed the inmate’s execution, explaining that the inmate was entitled to specific information rather than the state’s bald assurances: “Similarly, knowing the specific qualifications of those who will perform the execution will give the public more confidence than a state’s generic assurance that executions will be administered safely and pursuant to certain qualifications and standards.” See Wood v. Ryan, --- F.3d ----, 2014 WL 3563348, at *8 (9th Cir. July 19, 2014), vacated, Ryan v. Wood, --- S. Ct. ----, 2014 WL 3600362 (Mem) (July 22, 2014).
6
Governor of Arizona to direct the Arizona Department of Corrections to “conduct a full review
of the process.” See http://www.azgovernor.gov/dms/upload/PR_072314_WoodExecution.pdf
(attached hereto as Exhibit 7).
22. Past history thus demonstrates that midazolam is of questionable efficacy, at best.
It is therefore crucial to have information about this drug, any plans to administer the drug, and
the broader execution protocol.
23. The Commonwealth has proven adamant to shield information regarding
execution procedures even from death-sentenced inmates, who seemingly have the greatest need
for insight into the process. The Code permits death-sentenced inmates to choose between lethal
injection and electrocution as the method of execution. Va. Code Ann. § 53.1-234. However,
VDOC is unwilling to disclose highly relevant information that could be used by inmates in
making this decision.3
24. For example, the Commonwealth resisted disclosing information about its
procedures to a death-sentenced inmate, even after being ordered to do so by a court. See Brief
for Amicus Curiae Walker Supporting Petitioner at *4-5, Hill v. McDonough, 547 U.S. 573
(2006) (No. 05-8794), 2006 WL 558286, at *5 (attached hereto as Exhibit 8) (explaining that
Virginia was required to produce its execution manual, over the Commonwealth’s objections, in
Walker v. Johnson, No. 05-0934 (E.D. Va.)). As explained in the individual’s brief, the
Before the magistrate judge, Virginia argued repeatedly that its security concerns exempted it from the normal discovery obligations of a civil litigant. Virginia adamantly refused to disclose its execution manual until forced to do so by the court—
3 VDOC’s silence in this regard is especially troubling because the Attorney General, on behalf of the Warden, has consistently argued that an inmate waives his Eighth Amendment argument if he is unable or unwilling to choose a method of execution.
7
and even then, Virginia insisted that counsel to Amicus sign a strict confidentiality agreement pursuant to a protective order….Only through such discovery—over the Commonwealth’s heated objections—has Amicus been able to learn the details of Virginia’s lethal injection process and the magnitude of risk inherent therein.
Id. at *5.
25. VDOC must provide inmates with the information they need to make informed
decisions regarding the execution method to be used, particularly if the lethal injection now
consists of a new and controversial drug.
B. The VFOIA Requests
26. On June 13, 2014, Petitioner submitted a letter to A. David Robinson, Chief of
Corrections Operations for VDOC, seeking records pursuant to the VFOIA (“Request” or
“Requests”) (attached hereto as Exhibit 9). The Requests were organized into 39 inquiries, each
relating to executions in Virginia.
27. Petitioner anticipated that VDOC might attempt to shield certain documents by
asserting various VFOIA exemptions, so proactively sought a detailed explanation of the basis
for exemptions that VDOC set forth.
28. VDOC responded on June 27, 2014 (“Response” or “Responses”) (attached
hereto as Exhibit 10). VDOC provided fourteen attachments of documents. VDOC stated that
no documents existed for approximately ten of the Requests. VDOC ostensibly withheld the
most critical documents, or all documents, for an additional sixteen of the Requests.
29. To the extent VDOC withheld such documents alleging an exemption, either the
claimed exemption was clearly improper or VDOC failed to show why the exemption should
apply.
30. Unable to obtain either full disclosure of documents from VDOC or a detailed
justification of its withholding, Petitioner now seeks a writ of mandamus from the Court.
8
RELEVANT VFOIA PROVISIONS
31. The objective of the VFOIA is to give transparency to the operations of the
government by giving the public access to government records. As explained in the Code, “The
affairs of government are not intended to be conducted in an atmosphere of secrecy since at all
times the public is to be the beneficiary of any action taken at any level of government.” Va.
Code Ann. § 2.2-3700(B).
32. Accordingly, the presumption is that a document must be accessible by the public
unless the public body properly invokes an exemption. Va. Code Ann. § 2.2-3700(B).
33. Exemptions are narrowly construed: “The provisions of this chapter shall be
liberally construed to promote an increased awareness by all persons of governmental activities
and afford every opportunity to citizens to witness the operations of government. Any
exemption from public access to records or meetings shall be narrowly construed ….” Va. Code
Ann. § 2.2-3700(B).
34. A public body may not withhold a document in its entirety when parts of it are
non-exempt; rather, it must produce a redacted copy. See Virginia Freedom of Information
Advisory Opinion AO-13-02 (2002) (attached hereto as Exhibit 11): “As noted above, if a
record contains both exempt and non-exempt information, the public body may redact only the
exempt information and must produce the remainder of the document.”4
35. Section 2.2-3713(A) of the Code authorizes a party denied rights under the
VFOIA to file a petition for mandamus. The burden is on VDOC to establish its exemptions by
a preponderance of the evidence. Va. Code Ann. § 2.2-3713(E).
4 Advisory Opinions, though not binding, have been deemed “instructive and persuasive.” The Am. Tradition Inst. v. Rectors and Visitors of the Univ. of Va., 2011 WL 9150896 (June 15, 2011 Va. Cir. Ct.) (Trial Order) (attached hereto as Exhibit 12).
9
COUNT ONE (Violation of the Virginia Freedom of Information Act:
Access to Public Records – Execution Manual)
36. Petitioner repeats and incorporates by reference the allegations in paragraphs 1
through 35.
37. Petitioner submitted two Requests seeking VDOC’s execution protocols:
a. “The current and five (5) most recent lethal injection protocols.” Ex. 9 at Request 23; and
b. “The current and five (5) most recent electrocution protocols.” Ex. 9 at Request 30.
38. VDOC’s Response acknowledged that it maintains “Execution Manuals” dated
February 14, 2014, July 24, 2012, April 1, 2011, October 1, 2010, July 1, 1997, and January 1,
1995.
39. VDOC refused, wholesale, to produce any of these Execution Manuals and failed
to provide redacted copies as well.
40. Instead, VDOC produced a three and a half page “general overview of the
process” (“General Overview”) (attached hereto as Exhibit 13). More than half of the General
Overview details the history of executions, without giving any information pertaining to the
specifics of the procedure recited in any of the Execution Manuals acknowledged.
41. The General Overview is patently outdated and is not authoritative on the current
procedure. Tellingly, the General Overview’s explanation of the drugs used for the lethal
injection does not mention midazolam. Compare Ex. 13 at 3-4 (listing Pentobarbital/Thiopental
Sodium, Pancuronium Bromide/Rocuronium Bromide, and Potassium Chloride as the
components of the lethal injection) with Ex. 1 (noting that midazolam was approved to be used in
place of Pentobarbital/Thiopental Sodium).
10
42. Regarding the procedure for electrocutions, the General Overview provides scant
information. It states only that: (1) the chair is “a homemade oak armchair with leather straps
attached;” (2) “[t]he equipment is designed to deliver electricity in two applications, each lasting
one and a half minutes, for a total application of three minutes,” with a “slight pause” between
the two applications; and (3) the attending physician “may certify that death has occurred” five
minutes after the second application. Ex. 13.
43. The General Overview leaves many questions unanswered regarding
electrocution, including but not limited to: (1) the voltage applied; (2) where the current enters
the inmate’s body; (3) whether the same voltage is used for all inmates, or varies by the size of
the inmate; (4) whether the inmate is attached to any medical monitoring devices; (5) whether
there is a plan of any sort if complications arise; and (6) whether the governor or court system is
contacted prior to commencing the electrocution.
44. Regarding the procedure for lethal injections, the General Overview likewise
provides little information. It states only that: (1) the inmate is restrained to a table; (2) the
curtains are closed while the IV lines are established; (3) “normally” one IV line is established in
each arm; and (4) three chemicals are used in the process: (a) Pentobarbital or Thiopental
(attached hereto as Exhibit 16) (describing the death chamber and the process of a lethal
injection).
54. It is difficult to comprehend how the Security Exemption can be applicable when
citizen witnesses observe critical portions of the procedure, ostensibly without having to first
enter into a confidentiality agreement.
Legal Bars To Withholding The Execution Manuals
55. Expressio unius est exclusio alterius: The Code specifies that the identity of the
executioners cannot be obtained through VFOIA requests or discovery. See Va. Code Ann. §
53.1-233. The Code does not, however, prohibit obtaining the execution protocol through FOIA
or discovery. If the legislature intended for the execution protocol to be shielded from the
public, then it logically would have restricted disclosure in the Code, as it did with identity of
executioners. In accordance with longstanding legal principles, the protocol should therefore be
obtainable through a VFOIA request. See Tate v. Ogg, 170 Va. 95, 103, 195 S.E. 496, 499
(1938) (applying the expressio unius est exclusio alterius doctrine to a Virginia statute).
5 VDOC does not, however, disclose the identity of the witnesses. It is therefore not possible to interview witnesses to better understand the process. The public only learns what witnesses choose to publicize.
14
56. Previous Disclosure: The Commonwealth’s previous disclosure of an Execution
Manual also casts doubt upon the validity of the Security Exemption.
57. Several years ago, the Commonwealth produced an Execution Manual, over its
adamant opposition, during discovery in a case in the Eastern District of Virginia. See Ex. 8 at
*5 (explaining that Virginia was required to produce its execution manual, over
Commonwealth’s security concerns, in Walker v. Johnson, No. 05-0934 (E.D. Va.)).
58. Upon information and belief, VDOC and the courts freely discussed and
published information from the Execution Manual in this context. See, e.g., Emmett v. Johnson,
532 F.3d 291, 293-94 (4th Cir. 2008) (discussing details of the Virginia Department of
Corrections Operating Procedure for carrying out executions).
59. If disclosure of the contents of the Execution Manual would truly have
jeopardized the security of VDOC facilities or persons there, it seems unlikely that the court
would have ordered disclosure, even pursuant to a protective order.6
60. Petitioner is not aware of any instances where the Commonwealth’s disclosure of
the Execution Manual has caused any safety issue. Further, the Requests invited VDOC to
explain its basis for the Security Exemption. If such safety issues have occurred, then VDOC
would presumably have explained the Security Exemption with reference to those instances.
61. Further, it is probative that the Commonwealth has disclosed other procedural
manuals in the criminal justice context. See generally http://www.dfs.virginia.gov/laboratory-
forensic-services/biology/manuals/ (attached hereto as Exhibit 17) (providing links to numerous
manuals and forms maintained by the Virginia Department of Forensic Science on topics
6 Petitioner recognizes that the discovery process and VFOIA process are distinct. However, even though a document produced in the course of discovery will not be publicly-available, it still seems unlikely that a court would order disclosure of material with the high degree of sensitivity that VDOC here claims.
15
relevant to criminal defendants, such as DNA testing). If the Commonwealth is willing to
disclose materials that are relevant to an individual’s conviction, it seems inconsistent to then
refuse to disclose materials pertaining to an individual’s execution.
Disclosure Of Similar Material In Other States
62. Parallel Case: It is instructive that a Colorado court recently grappled with a
nearly identical issue and determined that production of a redacted execution manual was
warranted. In American Civil Liberties Union of Colorado v. Colorado Department of
Corrections, No. 13CV32325 (Denver Dist. Ct. Aug. 1, 2013) (Court’s Order re: Findings and
Conclusions of Law) (attached hereto as Exhibit 18), the ACLU attempted to obtain Colorado’s
execution protocol through the Colorado Open Records Act and the Colorado Criminal Justice
Records Act.
63. That court did acknowledge that Colorado had legitimate security concerns: “The
requested protocol contains security sensitive information about the protocol to be used in the
execution process including offender movement, security procedures in place during the
g. Kentucky - Lethal Injection Protocols: The state explains its lethal
injection protocol in an administrative regulation, available online. The
procedure covers, inter alia: the determination of which drugs to use for
lethal injections; the involvement of a physician; and the quantity of each
drug used for lethal injections. See 501 KAR 16:330, available at
http://www.lrc.state.ky.us/kar/501/016/330.htm (attached hereto as Exhibit
26).
66. Given the presence of witnesses, the language of the Code, the Commonwealth’s
previous disclosure, and the treatment of execution procedures by other states, it seems highly
unlikely that the entire content of the Execution Manuals may be withheld pursuant to the
Security Exemption. Nor has VDOC proffered any factual support of the Security Exemption in
its Responses.
19
67. Petitioner requests that the Court issue a writ of mandamus to remedy VDOC’s
violations of the VFOIA arising from its withholding of documents based on an erroneously
claimed exemption and by failing to provide sufficient information to establish that it validly
invoked exclusions to the VFOIA. Petitioner requests that the Court order Respondent to
produce, within five days, copies of the Execution Manuals referenced by VDOC, dated
February 14, 2014, July 24, 2012, April 1, 2011, October 1, 2010, July 1, 1997, and January 1,
1995.
68. For those documents that Respondent claims are exempt from disclosure under
the VFOIA, in part or in full, Petitioner respectfully requests that the Court order Respondent to
produce the documents for in camera inspection by the Court. To the extent that the Court holds
that portions of the documents are properly withheld under an exemption to the VFOIA,
Petitioner requests that the Court order redaction of the appropriate portions of the documents
and production of the redacted documents to Petitioner, along with a log stating, generally, the
subject matter of the redacted portions. To the extent that the Court holds that documents are
properly withheld or redacted under an exemption to the VFOIA, Petitioner requests that the
Court include the documents in the record under seal for purposes of appellate review.
69. Petitioner also requests an award of attorneys’ fees and costs pursuant to Va.
Code Ann. § 2.2-3713(D).
COUNT TWO (Violation of the Virginia Freedom of Information Act:
Access to Public Records – Training Materials)
70. Petitioner repeats and incorporates by reference the allegations in paragraphs 1
through 69.
71. Seven of Petitioner’s Requests sought various VDOC training materials:
20
a. “All lethal injection training materials from the last five (5) years, including but not limited to training dates, training schedules, training agendas, training manuals, and training records of individual employees.” Ex. 9 at Request 15;
b. “All electrocution training materials from the last five (5) years, including but not limited to training dates, training schedules, training agendas, training manuals, and training records of individual employees.” Ex. 9 at Request 16;
c. “All documents concerning execution team training, including but not limited to lethal injection team and IV team lesson plans and training manuals, drafted or utilized in the last five (5) years, including but not limited to training dates, training schedules, training agendas, training manuals, and training records of individual employees.” Ex. 9 at Request 17;
d. “All documents concerning electrocution team training, including but not limited to electrocution team lesson plans and training manuals, drafted or utilized in the last five (5) years, including but not limited to training dates, training schedules, training agendas, training manuals, and training records of individual employees.” Ex. 9 at Request 18;
e. “All documentation of execution team training sessions, including but not limited to lethal injection process training files and records of all lethal injection training sessions from the last five (5) years, including but not limited to training dates, training schedules, training agendas, training manuals, and training records of individual employees.” Ex. 9 at Request 19;
f. “All documentation of execution team training sessions, including but not limited to electrocution process training files and records of all electrocution training sessions from the last five (5) years, including but not limited to training dates, training schedules, training agendas, training manuals, and training records of individual employees.” Ex. 9 at Request 20; and
g. “Any documentation pertaining to employee training related to the training for, planning of or general information about executions submitted by any execution team member, execution team leader, or execution team administrator, including training credit sheets, overtime requests, travel requests and reimbursements from the last five (5) years, including but not limited to training dates, training schedules, training agendas, training manuals, and training records of individual employees.” Ex. 9 at Request 21.
72. VDOC’s Responses to each of the above Requests were practically identical.
VDOC acknowledged that the responsive records were training dates, training schedules,
training agendas, training rosters, and the training records of individual employees.
21
73. While VDOC produced training dates, with most future dates redacted, it
otherwise refused to produce the materials wholesale. 7
74. Training Agendas: VDOC withheld the training agendas based on the Security
Exemption, and also because the training agendas purportedly contain “identifying information
of employees,” citing Va. Code Ann. §§ 2.2-3705.1(1), 2.2-3705.7(26), and 53.1-233.
75. In the Requests, Petitioner had preemptively asked VDOC to produce the training
agendas with personally identifiable information redacted, to the degree that the responsive
documents contained such information. To the extent that VDOC asserted the Security
Exemption, the Requests also sought a detailed explanation of how disclosure would jeopardize
security.
76. VDOC did not produce training agendas – with or without redaction. Further,
VDOC did not attempt to justify the Security Exemption in its Response. Instead, VDOC again
simply quoted the language of the Security Exemption without any factual support and ignored
Petitioner’s request for a detailed explanation of how disclosure would jeopardize security. For
the reasons stated above with regard to the Execution Manuals, it is difficult to understand how
disclosure of the training agendas would jeopardize the security of VDOC facilities. See supra
Count One.
77. VDOC may not withhold the entire document if portions are non-exempt. See Ex.
11 (“As noted above, if a record contains both exempt and non-exempt information, the public
body may redact only the exempt information and must produce the remainder of the
document.”).
7 VDOC withheld the training rosters because they contain “identifying information of employees,” citing Va. Code Ann. §§ 2.2-3705.1(1) and 53.1-233. Petitioner agrees, based on the description, that VDOC is properly withholding the training rosters.
22
78. Training Records of Individual Employees: Petitioner asked VDOC to produce
the training records of individual employees, but recognized that identifying information would
require redaction. See Ex. 9 at Requests 15-21 (“To the extent that the responsive documents
contain identifying information of employees, per Va. Code §2.2-3705(1), 2.2-3705.7(26), or
53.1-233, please produce redacted documents, or provide a detailed explanation of, and any
records supporting, how the documents are still subject to an exemption after personally
identifiable information is redacted.”).
79. VDOC did neither. VDOC did not produce copies of the training records – with
or without redaction. Nor did VDOC attempt to explain how the records could not be disclosed,
even after redaction. VDOC merely pressed the same statutory language regarding identifying
information.
80. It is difficult to understand how the training records are still subject to an
exemption after redacting the training participants’ names and other identifying information.
81. Training Schedules: Petitioner specifically asked VDOC to provide training
schedules. See Ex. 9 at Requests 15-21.
82. Although VDOC referenced the training schedules in its Response, it did not
produce them, nor did it give any basis for withholding them, in violation of the VFOIA. See
Va. Code Ann. § 2.2-3704(B)(1) (“Such [withholding of records in full] shall … cite, as to each
category of withheld records, the specific Code section that authorizes the withholding of the
records.”).
83. By failing to respond, VDOC violated the VFOIA. See Va. Code Ann. § 2.2-
3704(E) (“Failure to respond to a request for records shall be deemed a denial of the request and
shall constitute a violation of this chapter.”).
23
84. Training Manuals: Petitioner also specifically asked for training manuals. See
Ex. 9 at Requests 15-21. In its Response, VDOC did not address the request. VDOC did not
produce responsive documents, cite an applicable exemption, or state that no training manuals
exist.
85. Petitioner requests that the Court issue a writ of mandamus to remedy VDOC’s
violations of the VFOIA arising from its withholding of documents based on erroneously
claimed exemptions and by failing to provide sufficient information to establish that it has
validly invoked exclusions to the VFOIA. Petitioner requests that the Court order Respondent to
produce, within five days, copies of the training agendas and training schedules referenced by
VDOC, and any training manuals that may exist.
86. For those documents that Respondent claims are exempt from disclosure under
the VFOIA, in part or in full, Petitioner respectfully requests that the Court order Respondent to
produce the documents for in camera inspection by the Court. To the extent that the Court holds
that portions of the documents are properly withheld under an exemption to the VFOIA,
Petitioner requests that the Court order redaction of the appropriate portions of the documents
and production of the redacted documents to Petitioner, along with a log stating, generally, the
subject matter of the redacted portions. To the extent that the Court holds that documents are
properly withheld or redacted under an exemption to the VFOIA, Petitioner requests that the
Court include the documents in the record under seal for purposes of appellate review.
87. Petitioner also requests an award of attorneys’ fees and costs pursuant to Va.
Code Ann. § 2.2-3713(D).
24
COUNT THREE (Violation of the Virginia Freedom of Information Act:
Access to Public Records – Specifications Related to the Electric Chair)
88. Petitioner repeats and incorporates by reference the allegations in paragraphs 1
through 87.
89. Petitioner submitted two Requests seeking specifications related to the electric
chair:
a. “Any and all documentation of the specifications related to the electric chair, including but not limited to the voltage, current, connections, and electrodes.” Ex. 9 at Request 33; and
b. “Any and all documentation related to the installation, set-up, power supply, and control console of the electric chair.” Ex. 9 at Request 34.
90. VDOC gave identical responses to the above Requests in its Response.
91. VDOC acknowledged that it maintains six responsive documents: (1)
Manufacturer’s installation instructions for the ammeter and voltmeter; (2) AC Current / Voltage
Transmitter Instrument Installation; (3) Summary Bill of Material and manufacturer’s
installation recommendations for the panel board, the dry type transformer, enclosed controls and
enclosed circuit breakers; (4) Manufacturer’s information packet for a solid state logic automatic
transfer switch; (5) Chamber Electrical Panel schematic; and (6) Execution Equipment Control
92. However, VDOC withheld all of the Electrocution Specification Documents, in
full, citing the Security Exemption.
93. Petitioner had proactively asked for redacted Electrocution Specification
Documents or for more information regarding specifically how disclosure would jeopardize the
security of VDOC facilities.
25
94. VDOC did not, however, give any information about how disclosure would
jeopardize security in its Response. Its Response is noticeably devoid of factual support for the
Security Exemption. VDOC has not explained how, and it seems unlikely that, disclosure of the
specifications of technical equipment – equipment to which the public has no access – could
jeopardize the security of VDOC facilities. Furthermore, it seems unlikely that such a disclosure
would jeopardize security since the public has no access to the equipment.
95. Some of the information in these documents is presumably disclosed to – or in the
least, observed by – witnesses to electrocutions. Witness accounts have given various
information about electrocutions:
a. The current and voltage: 1800 volts at 7.5 amps for 30 seconds followed
by 60 seconds of 240 volts at 1.5 amps (Ex. 14). But see Ex. 15
(describing the voltage as “about 2,000 volts”);
b. The electrodes: A metal brace lined with sea sponge soaked in brine,
attached to the inmate’s right leg and a metal skull cap, also lined with sea
sponge, affixed to the inmate’s head (Ex. 14); and
c. The machine: About the size of a domestic clothes dryer; activated when
a correctional officer turns a key in the wall, and another officer, in a room
adjacent to the death chamber, hits a button marked “execute” (Ex. 14).
96. Petitioner requests that the Court issue a writ of mandamus to remedy VDOC’s
violations of the VFOIA arising from its withholding of documents based on an erroneously
claimed exemption and by failing to provide sufficient information to establish that it has validly
invoked an exclusion to the VFOIA. Petitioner requests that the Court order Respondent to
26
produce, within five days, copies of the Electrocution Specification Documents referenced by
VDOC.
97. For those documents that Respondent claims are exempt from disclosure under
the VFOIA, in part or in full, Petitioner respectfully requests that the Court order Respondent to
produce the documents for in camera inspection by the Court. To the extent that the Court holds
that portions of the documents are properly withheld under an exemption to the VFOIA,
Petitioner requests that the Court order redaction of the appropriate portions of the documents
and production of the redacted documents to Petitioner, along with a log stating, generally, the
subject matter of the redacted portions. To the extent that the Court holds that documents are
properly withheld or redacted under an exemption to the VFOIA, Petitioner requests that the
Court include the documents in the record under seal for purposes of appellate review.
98. Petitioner also requests an award of attorneys’ fees and costs pursuant to Va.
Code Ann. § 2.2-3713(D).
COUNT FOUR (Violation of the Virginia Freedom of Information Act:
Access to Public Records – Choice of Execution Method Documents)
99. Petitioner repeats and incorporates by reference the allegations in paragraphs 1
through 98.
100. Petitioner submitted a Request seeking records pertaining to an inmate’s choice of
execution method: “Any records regarding an inmate’s choice of a particular method of
execution from the last five (5) years, including any records, correspondence, or policies in any
form detailing when and in what manner an inmate is afforded a choice of execution method,
whether an inmate is afforded additional opportunities to reconsider his or her choice of
27
execution method, and what information and/or counseling an inmate is provided to aid in
choosing a method of execution.” Ex. 9 at Request 38.
101. VDOC initially withheld the records pursuant to Va. Code Ann. § 2.2-
3706(A)(2)(d) (records of persons imprisoned (“Imprisonment Exemption”)).
102. Section 2.2-3706(A)(2) makes disclosure discretionary, but does not prohibit it
outright: “The following records are excluded from the provisions of this chapter, but may be
disclosed by the custodian, in his discretion, except where such disclosure is prohibited by
law….” Va. Code Ann. § 2.2-3706(A)(2) (emphasis added). VDOC has not alleged that
disclosure is prohibited by law, nor has it explained why it will not release the documents.
103. VDOC then stated that the Execution Manuals it maintains are responsive to this
Request, but withheld them based upon the Security Exemption. Ex. 10 at Response 38.
104. For the reasons stated above, VDOC’s withholding of the Execution Manuals
already appears unjustified. See supra Count One. However, VDOC’s admission that the
Execution Manuals address the process whereby an inmate chooses an execution method further
undermines VDOC’s claimed Security Exemption. It is illogical that disclosure of a policy
explaining how an inmate chooses a method of execution could jeopardize security of VDOC
facilities. Inmates are unquestionably permitted to share the details of the process, as they
experience it, with others. The Court should reject VDOC’s attempt to shield this information
from the public.
105. Regarding the inmate records identified by VDOC, Petitioner requests that the
Court issue a writ of mandamus to remedy VDOC’s withholding of documents, without
explanation, that it may disclose in its discretion. Regarding the Execution Manuals, Petitioner
further requests that the Court issue a writ of mandamus to remedy VDOC’s violations of the
28
VFOIA arising from its withholding of documents based on an erroneously claimed exemption
and by failing to provide sufficient information to establish that it has validly invoked an
exclusion to the VFOIA. Petitioner requests that the Court order Respondent to produce, within
five days, copies of the records, correspondence, or policies regarding an inmate’s choice of a
particular execution method.
106. For those documents that Respondent claims are exempt from disclosure under
the VFOIA, in part or in full, Petitioner respectfully requests that the Court order Respondent to
produce the documents for in camera inspection by the Court. To the extent that the Court holds
that portions of the documents are properly withheld under an exemption to the VFOIA,
Petitioner requests that the Court order redaction of the appropriate portions of the documents
and production of the redacted documents to Petitioner, along with a log stating, generally, the
subject matter of the redacted portions. To the extent that the Court holds that documents are
properly withheld or redacted under an exemption to the VFOIA, Petitioner requests that the
Court include the documents in the record under seal for purposes of appellate review.
107. Petitioner also requests an award of attorneys’ fees and costs pursuant to Va.
Code Ann. § 2.2-3713(D).
COUNT FIVE (Violation of the Virginia Freedom of Information Act:
Access to Public Records – Documentation of Recent Executions)
108. Petitioner repeats and incorporates by reference the allegations in paragraphs 1
through 107.
109. Petitioner submitted two Requests seeking documentation from recent executions:
a. “Any record in any form showing the time of death for the inmates executed by VDOC within the last five (5) years.” Ex. 9 at Request 36; and
b. “Any execution records, logs, transcripts, notes, or other records documenting the execution of inmates in the last five (5) years, including but not limited to the time
29
the inmate was positioned, the time each dose of chemical or each electric jolt was administered, and the time the inmate was pronounced dead.” Ex. 9 at Request 37.
110. In response, VDOC produced one document: a short spreadsheet showing the
name, age, race, sex, crime, sentencing court, date of execution, and time of death for seven
inmates executed between 2009 and 2013.
111. VDOC identified other responsive documents that it was withholding on account
of various exemptions:
a. execution logs (citing the Security Exemption and the Imprisonment Exemption);
b. security logs (citing the Security Exemption);
c. records of individual inmates (citing the Imprisonment Exemption); and
d. medical records (citing Va. Code Ann. § 2.2-3705.5(1) – “[h]ealth records”).
Ex. 10 at Responses 36-37.
112. In his Requests, Petitioner had preemptively asked for a detailed explanation of
the basis for the exemptions that VDOC would assert. Regarding imprisonment records and
health records, Petitioner sought clarification of how the exemptions could apply, given that the
records pertain to circumstances after an inmate is deceased, and therefore do not logically
“relate to the imprisonment” or the inmate’s “health,” as required by the respective exemptions.
Regarding the Security Exemption, Petitioner asked for an explanation of how disclosure of a
security log or execution log – chronicling events of the past – could jeopardize the current
security of VDOC facilities.
113. In its Response, VDOC did not address any of Petitioner’s points or provide any
clarification of its basis for the exemptions; it merely cited to and quoted from certain Code
sections, without any factual support.
30
114. It is questionable that VDOC has a basis for withholding these responsive
documents and VDOC has not attempted to explain its justification.
115. First, the Imprisonment Exemption does not prohibit VDOC from disclosing
responsive documents. Instead, the Code specifies that it makes disclosure discretionary – but
only prohibits disclosure “where such disclosure is prohibited by law….” VDOC has not alleged
that disclosure is prohibited by law, nor has it explained why it will not release the documents.
116. Second, the exemption pertaining to health records is not an absolute bar either.
At the outset, execution records arguably do not qualify as health records. The Code does not
define “health records,” but it seems unlikely that the legislature contemplated execution
documentation when it drafted protections for an individual’s health records.
117. Even if execution records can be deemed health records, case law has clarified
that third-party medical records can be discoverable. See Planicka v. American Anesthesiology,
client privilege does not attach to a document merely because a client delivers it to his
attorney.”); Virginia Freedom of Information Advisory Opinion AO-25-03 (2003) (attached
hereto as Exhibit 27) (“Nonprivileged documents do not become privileged merely because they
are sent to a lawyer.”).
128. Given this precedent, VDOC erred in making a blanket statement that the Lethal
Injection Papers are protected in full by the attorney-client privilege.
129. Petitioner requests that the Court issue a writ of mandamus to remedy VDOC’s
violations of the VFOIA arising from its withholding of documents beyond the scope of an
exemption. Petitioner requests that the Court order Respondent to produce, within five days, the
factual content of the Lethal Injection Papers and any non-privileged records attached to and/or
incorporated within the Lethal Injection Papers.
130. For those documents that Respondent claims are exempt from disclosure under
the VFOIA, in part or in full, Petitioner respectfully requests that the Court order Respondent to
produce the documents for in camera inspection by the Court. To the extent that the Court holds
that portions of the documents are properly withheld under an exemption to the VFOIA,
Petitioner requests that the Court order redaction of the appropriate portions of the documents
and production of the redacted documents to Petitioner, along with a log stating, generally, the
subject matter of the redacted portions. To the extent that the Court holds that documents are
properly withheld or redacted under an exemption to the VFOIA, Petitioner requests that the
Court include the documents in the record under seal for purposes of appellate review.
34
131. Petitioner also requests an award of attorneys’ fees and costs pursuant to Va.
Code Ann. § 2.2-3713(D).
COUNT SEVEN (Violation of the Virginia Freedom of Information Act: Access to Public Records – Payment Documentation)
132. Petitioner repeats and incorporates by reference the allegations in paragraphs 1
through 131.
133. Petitioner submitted a Request seeking payment records for lethal injection drugs:
“Any and all invoices of purchases from, or checks or other forms of payment to [“Payment
Documentation”], Cardinal Health or any other pharmaceutical company, pharmaceutical
distributor, pharmacy (including compounding pharmacies), or company from the last five (5)
years for [lethal injection drugs].” Ex. 9 at Request 7.
134. VDOC produced a number of invoices, but no Payment Documentation. A
number of the invoices appear to be marked “Please pay” in handwriting; however, VDOC has
not produced any proof of payment, nor has it claimed that the records are exempt from
disclosure.
135. Petitioner requests that the Court issue a writ of mandamus to remedy VDOC’s
violations of the VFOIA arising from its withholding of documents without invoking an
applicable exemption. Petitioner requests that the Court order Respondent to produce, within
five days, all Payment Documentation.
136. For those documents that Respondent claims are exempt from disclosure under
the VFOIA, in part or in full, Petitioner respectfully requests that the Court order Respondent to
produce the documents for in camera inspection by the Court. To the extent that the Court holds
that portions of the documents are properly withheld under an exemption to the VFOIA,
35
Petitioner requests that the Court order redaction of the appropriate portions of the documents
and production of the redacted documents to Petitioner, along with a log stating, generally, the
subject matter of the redacted portions. To the extent that the Court holds that documents are
properly withheld or redacted under an exemption to the VFOIA, Petitioner requests that the
Court include the documents in the record under seal for purposes of appellate review.
137. Petitioner also requests an award of attorneys’ fees and costs pursuant to Va.
Code Ann. § 2.2-3713(D).
36
WHEREFORE, Petitioner respectfully requests that this Honorable Court:
A. Find that the failure to disclose the requested information violated the VFOIA;
B. Issue a writ of mandamus requiring the Respondent to act as follows, excising, if applicable, only those portions of documents that are properly subject to an exemption of the VFOIA, and releasing the remainder of the requested records:
1. within five (5) days of the date of the writ, produce to Petitioner copies of the Execution Manuals referenced by VDOC, dated February 14, 2014, July 24, 2012, April 1, 2011, October 1, 2010, July 1, 1997, and January 1, 1995;
2. within five (5) days of the date of the writ, produce to Petitioner copies of the training agendas and training schedules referenced by VDOC, and any training manuals that may exist;
3. within five (5) days of the date of the writ, produce to Petitioner copies of the Electrocution Specification Documents referenced by VDOC;
4. within five (5) days of the date of the writ, produce to Petitioner copies of the records, correspondence, or policies regarding an inmate’s choice of a particular execution method;
5. within five (5) days of the date of the writ, produce to Petitioner copies of the execution logs and security logs from the past five years, and redacted copies of inmates’ records showing their respective times of death;
6. within five (5) days of the date of the writ, produce to Petitioner the factual content of the Lethal Injection Papers identified by VDOC and any non-privileged records attached to and/or incorporated within the Lethal Injection Papers;
7. within five (5) days of the date of the writ, produce to Petitioner the Payment Documentation;
8. within five (5) days of the date of the writ, submit all documents responsive to the Requests that Respondent claims are exempt from disclosure under the VFOIA to the Court for in camera inspection by the Court; and
9. within forty-five (45) days of the date of the writ, submit a report to the Court certifying, under oath, Respondent’s compliance with the Court’s writ of mandamus;
C. Provide Petitioner the opportunity to seek additional relief after reviewing all documents produced in response to the writ and the Requests.
D. Award Petitioner its attorneys’ fees and other costs pursuant to Va. Code Ann. § 2.2-3713(D); and
E. Grant such other and further relief as the Court deems just and proper.
37
Dated: July __, 2014 Respectfully submitted,
_____________________________ Frank Pietrantonio (VSB No. 25473) Erik B. Milch (VSB No. 46375) MaryBeth W. Shreiner (VSB No. 75592) Michael J. Mortorano (VSB No. 86210) COOLEY LLP 11951 Freedom Drive Reston, Virginia 20190-5656 Telephone: (703) 456-8000 Facsimile: (703) 456-8100 E-mail: [email protected] E-mail: [email protected] E-mail: [email protected] E-mail: [email protected] Robert E. Lee (VSB No. 37410) VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER 2421 Ivy Road, Suite 301 Charlottesville, Virginia 22903 Telephone: (434) 817-2970 Facsimile: (434) 817-2972 Email: [email protected] Counsel for Petitioner