The state’s open government law doesn’t apply to Attorney General Ken Cuccinelli, his office says, elaborating on responses to requests for public records connected with a company whose CEO gave $35,000 in gifts to Cuccinelli and Gov. Bob McDonnell.
The office says the Freedom of Information Act doesn’t apply to it because the office is established by the Virginia Constitution and is not therefore a “public body” as defined by the act.
“The attorney general’s office is committed to transparency, which includes complying with the protocols of FOIA, even though under Virginia law, FOIA doesn’t apply to a constitutional office,” said Office of the Attorney General spokesman Brian Gottstein. He said the office responds to hundreds of requests a year.
Gottstein was explaining language in two recent responses to requests for records related to the office’s handling of a $1.7 million tax dispute with Star Scientific, whose chief executive officer, Jonnie Williams, gave $35,000 in gifts to Cuccinelli and McDonnell after their election. The company gave $79,000 to McDonnell’s political action committee after the election.
Cuccinelli has said he never discussed a lawsuit the company filed in 2011 with Williams, and that he was not aware of the lawsuit when he purchased $10,000 in stock two years after the state’s only, perfunctory reply to the suit.
Spokespeople for his office and his gubernatorial campaign have repeatedly declined to respond when asked whether he had ever discussed the issue with Williams before the lawsuit.
They have also declined to respond when asked whether Cuccinelli was aware of Star’s repeated disclosure since 2005 of its intent to take legal action against the state if it couldn’t convince officials to reverse their assessment that it owed the taxes.
The office cited a 2011 Virginia Supreme Court decision saying the State Corporation Commission was not subject to the act because of its constitutional status and was therefore not the kind of public body to which FOIA applied.
But Megan Rhyne, executive director of the Virginia Coalition for Open Government, said that decision only applied to the SCC.
She said the act was specifically amended to say constitutional officers were considered public bodies after an earlier Supreme Court’s decision exempting commonwealth’s attorneys because of their constitutional status.
“I’m not sure how the AG can say, then, that the office is not subject to FOIA. I also cannot imagine the AG having a wholesale exclusion from FOIA where the governor and lieutenant governor both do not,” she said.
Section 2.2-3701 of the Code of Virginia says: “For the purposes of the provisions of this chapter applicable to access to public records, constitutional officers shall be considered public bodies and, except as otherwise expressly provided by law, shall have the same obligations to disclose public records as other custodians of public records.”
Waldo Jaquith, whose FOIA request for information regarding attorney general staff who received conflict of interests training was sparked by Cuccinelli’s disclosure of Williams’ gifts, said he was taken aback by the office’s response.
“I’m just bowled over,” Jaquith said. “Whether FOIA applies to the attorney general’s office isn’t a matter that’s up for debate — this isn’t the sort of thing that intelligent minds have disagreed on. This is a stunning perversion of open government laws and accountability to taxpayers. Black is white, up is down, FOIA doesn’t apply to Ken Cuccinelli.”