Judge orders Va. Department of Education to provide more detail in FOIA request

The newspaper in February requested communications between certain Department of Education officials and people at the American Enterprise Institute, a conservative-leaning think tank that, records show, has assisted the department in its work.

The department found 53 emails responsive to the newspaper’s FOIA request and provided the records, withholding five of the emails as working papers of the governor’s office.

Virginia FOIA says that when a public agency opts to withhold records, it must cite the code section that allows the withholding and “shall identify with reasonable particularity the volume and subject matter of withheld records.”

When the newspaper asked the department to describe the particular subject matter of the five withheld emails, the department’s FOIA officer declined. Reporter Patrick Wilson then filed a petition in Richmond General District Court on April 1 asking the court to order the department to comply with FOIA.

Substitute Judge Jennifer Rosen on Friday heard the case and found that the Department of Education should provide more detail than it had. She ordered the department to provide the newspaper with the dates of the withheld emails and the names of the individuals included on the withheld emails.

The department can do that or appeal the judge’s decision to circuit court.

Assistant Attorney General Robert McEntee III, representing the Department of Education, argued in court that the agency had complied with FOIA, and said any further description of the subject matter in the five withheld emails would violate the governor’s ability to shield his deliberative process from the public.

He said there would be no way the agency could describe the documents without identifying subject matter “which is the subject of the executive privilege.”

“The text of the FOIA request identifies the subject matter as an email between the governor’s office and the individuals identified in the Freedom of Information Act request,” McEntee said.

“And to require us to go beyond that sort of description of what these withheld documents are really peers into the deliberative process of the governor, and that’s what we’re trying to protect here.”

Wilson addressed the matter in court on Friday.

The judge said she did not think the law required the agency to provide a summary of what’s in the withheld emails, but thought that the agency should be able to provide the names of the specific people on the emails, and the exact dates, without infringing on the governor’s executive privilege.

Gov. Glenn Youngkin and his Department of Education are generating attention over a push to de-emphasize race and racism from K-12 classroom teaching.

The Department of Education’s connection to the American Enterprise Institute is murky. Jillian Balow, the state superintendent of public instruction, was not available for an interview about it, a department spokesperson said this week.

Records the Department of Education did release show that the department was receiving assistance from Max Eden, a research fellow at the American Enterprise Institute focusing on education, according to AEI’s website.

Youngkin and Balow are reversing diversity and equity policies that were promoted under James Lane, the superintendent of public instruction for Youngkin’s predecessor, Democratic Gov. Ralph Northam.

Early in his term, the Youngkin administration set up an email address for taking concerns from people about “divisive” teachings in schools. That account has been referred to as the “tipline,” and generated controversy because opponents fear it is having a chilling effect on teachers.

Numerous media outlets have made public records requests to the Youngkin administration to request copies of the emails that were sent to the account, but the administration has declined to release them, citing the discretionary exemption in the Virginia Freedom of Information Act for documents prepared for the personal or deliberative use of the governor’s office.