This report is not just in

It’s become predictable.

Some tragedy, some catastrophe, some breakdown, something’s gone terribly wrong.

Everyone’s reeling. Questions are multiplying. Rumors are flying.

So it is understandable that in their zeal to Do Something, many public bodies most closely impacted by the event rush to launch an investigation.

Please. Someone. Tell us what went wrong.

Then, weeks or months later, the announcement is trumped that the review is complete. The investigation is in-hand. We have the report.

Finally, we’ll have a shared accounting of what happened, when it happened, why it happened and how we can work to make sure it doesn’t happen again.

But, no.

Yes, we have the report, but no, we are not sharing it with the public. There’s a reason we can’t. It’s because of student privacy, or personnel, or attorney-client or working papers. There’s always a reason.

UVA: When it received the investigative report prepared by two outside law firms at the behest of the president and the head of the Board of Visitors about the shooting of three University of Virginia football players, the university announced it was reviewing the report for “factual accuracy” but would release it soon thereafter. But, in mid-November, the university announced it would withhold the entire report (a) to protect the 6th Amendment right to a fair trial of the defendant accused in the shooting, and (b) to not taint the jury pool during the student’s criminal trial. And, anyway, in response to FOIA requests, the university said the report is protected by attorney-client privilege.
Investigator: Quinn Emanuel Urquhart & Sullivan
Investigator: Zach Terwilliger

RICHMOND PUBLIC SCHOOLS: After a shooting at a Richmond high school graduation outside Altria Theater turned deadly, the school district asked the superintendent to conduct an investigation. This investigation was released this summer with almost everything redacted in the name of student privacy, though a clean copy showed that some of the redactions covered up recommendations that had nothing to do with identifiable students. Then, the board commissioned another report from an outside firm, and now that report is being withheld under the attorney-client privilege. 
Investigator: Sands Anderson

LOUDOUN COUNTY PUBLIC SCHOOLS: The two sexual assaults in county schools that helped launch the parents-rights movement across the country became the subject of an “external review” prepared by a law firm. Once the report was delivered, the school district refused to release it, citing student privacy and attorney-client privilege. And one school board member said if they released a redacted copy, it would just raise more questions. Attorney General Jason Miyares petitioned to get the report in a case his office was pursuing against the district’s former superintendent. The school district gave it to him but still wouldn’t release it to the public. Then the AG and the superintendent went in together to force release to the public, over a year-and-a-half later.
Investigator: Blankingship and Keith

VIRGINIA MILITARY INSTITUTE: VMI refused to turn over an internal investigation that looked into the institution’s relationship with the independent student newspaper before and after it was recognized by the Virginia Press Association for a public service award. Though it was unclear who authorized the report, it was withheld as both personnel records and the superintendent’s working papers.
Investigator: VMI Inspector General

FAIRFAX COUNTY PUBLIC SCHOOLS: The school district ordered an investigation into the school district’s uneven notification to students about their National Merit commendations. When the district got the results, it made a summary publicly available but resisted calls from the public and the AG’s office to release the entire report, citing student privacy and the potential of harassment and threats against students and staff.
Investigator: Sands Anderson

VIRGINIA ALCOHOLIC BEVERAGE CONTROL AUTHORITY:  An audit report looking into embezzlement at seven ABC retail outlets was withheld, citing personnel and perhaps other exemptions (I wasn’t made aware of the specific denial).
Investigator: VABC internal audit department

VIRGINIA STATE POLICE and the RICHMOND POLICE DEPARTMENT: The Virginia State Police conducted an investigation into a Richmond police officer’s involvement in the shooting death of a suspect in 2002. Citing the Rob Bell bill from 2022 to “protect the privacy rights of victims and witnesses”, the VSP denied access to the report. The department gave a copy to the Richmond Police Department, but the RPD also denied access to the report saying that even though they had a copy, it was really the VSP’s report so the RPD wasn’t the record’s custodian.
Investigator: Virginia State Police

The Alexandria Police Department cited an exemption specifically for law enforcement internal investigations when choosing not to release an internal investigation into photos showing a pig doll, placed in the passenger seat of a patrol car, wearing a bandit mask and a t-shirt bearing the words, “I can’t Breathe.”

I’m not delusional enough to think that these exemptions don’t cover at least parts of the reports. But these public bodies are delusional if they think that these exemptions cover the reports in their entirety.

There is an explicit requirement to redact that which can be redacted. It’s right there in §2.2-3704.01 and it was reiterated last year in the Supreme Court of Virginia case Hawkins v. Town of South Hill, a FOIA case that loosely defined the parameters of the personnel exemption.

So, yeah, it’s plausible to argue that the report identifies some employees justifying the use of the personnel exemption. It’s not plausible to say that the entire report has to be withheld because people could “deduce” who the employees are, as VMI asserted.

Same, too, with student info. Names and specific scholastic info can be redacted, but not everything will be about the student.

Working papers? Come on! These are not reports commissioned for the personal or deliberative use of the president, superintendent, or whichever of the seventy-leven people listed in that exemption. These are reports commissioned almost entirely by the boards, maybe with the agreement with the entity head, but nonetheless by the bodies themselves.

But attorney-client. Surely attorney-client applies, right? The Supreme Court of Virginia has repeatedly said that not everything a lawyer does for his or her government client is subject to confidentiality. In Bergano v. Virginia Beach, the court said a billing statement entry that doesn’t “reveal confidential information, including the motive of the client in seeking representation, or if they reveal litigation strategy” is not protected by the privilege. Sometimes work product, analytical work or research into a particular area of law may be protected, but only when disclosure would compromise legal strategy or legal advice.

These reports are not commissioned to give the public body legal advice. They are being sought to (refer back to the top) to Tell Us What Went Wrong.

Just because a law firm has prepared the report doesn’t magically transform it into attorney-client privileged communication. Note, for example, that Richmond schools directed staff to present for approval “two options of companies that can complete a third-party investigation.” Not “our law firm.” Two companies, meaning a reasonable option could have been a consultant, a private investigator or maybe a retired judge, as has been done in other cases. And those companies were to prepare findings on three specific areas — including “procedures that directly impact grading (i.e., not personnel, not student privacy, not attorney-client) for the board (not the superintendent’s working papers). But because they selected a law firm they now say the entire report is protected from disclosure by the attorney-client privilege.

The attorney-client privilege is what UVA and the AG have both cited when saying they weren’t going to release the report when they first got it. The BOV head and the president directed the AG (whose office — though not him directly — is the university’s attorney) to conduct an “external review” of what happened.

As reported at the time by the Associated Press:

In a letter, University of Virginia President Jim Ryan and University Rector Whitt Clement asked Attorney General Jason Miyares to appoint outside counsel to investigate UVA’s response to the shooting as well as efforts prior to the violence to assess the potential threat of the suspect.

“After a tragedy of this nature, it is important for the affected institution to take a hard look at what circumstances led up to the event and, how the University responded in the moment,” Clement said in a statement.

The AG contracted with two different entities, a law firm from Los Angeles and a former U.S. attorney, and the report was delivered 10 months later. When they got their copy, UVA said it would release the report in a few weeks, after the report could be checked for “factual accuracy.” 

Set aside for a moment that you shouldn’t need to check an externally prepared report for factual accuracy since the entire point of an external report is to establish a factually accurate picture of what did and didn’t happen. 

But as for the asserted attorney-client privilege, it should be noted that the AG’s office itself argued to the judge in Loudoun County that one does not typically seek an external review if one intends to keep lawyer-client communications privileged.

And the way I see it, these firms were not being directed by the public body as a client. They were acting independently to examine what happened and to uncover what was previously unknown. It’s just not appropriate to make a public announcement that you are Doing Something that’s going to help everyone understand, only to backtrack and lawyer up.

And now UVA has given its most audacious excuse for not releasing the report. After consulting with the Commonwealth’s Attorney who is prosecuting the alleged shooter, the university announced on Nov. 17 that it would withhold the entire report so as not to taint the jury pool for that trial and to protect the defendant’s right to a fair trial. After the criminal proceedings are complete, only then will the report be released.

According to a news report, the families of the murdered victim were blindsided by the university’s announcement. And let’s be very clear here: this report is not part of the criminal investigation. This is not the police, not the prosecutor, not anyone who is building a case against the alleged shooter. 

This report deals not only with what the shooter did on that day, but things the shooter may have done weeks and months earlier, and how the university did and didn’t respond. This report presumably looks at what the university did and didn’t do after the shooting.

So how are those facts and findings — and presumably the recommendations that were also made — related to the defendant’s actions at the time of the crime? How are those findings going to taint the jury pool for a trial that is months and months away and that will come after months and months of extensive local and national media coverage? How will this report be the straw that breaks the camel’s back that would lead to a constitutionally unfair trial for the defendant?

A smart lawyer could argue that all of these potential harms were imminent and real. But they would be making that case to a judge at the time of trial. A judge decides whether press coverage or other publicity necessitates a change in venue. A judge presides over voir dire, where potential jurors are asked if they can set aside what they’ve heard in order to be open-minded and to apply the applicable law. A judge decides whether certain evidence is admissible into evidence and whether its probative value is outweighed by its prejudicial effect. 

In other words, it’s not up to UVA to safeguard the integrity of the defendant’s rights, the Commonwealth’s Attorney’s case or the trial process generally.

Taking UVA’s position to its logical extreme means that any public body could start withholding records that could impact some prosecution somewhere without ever making the case that there is actual harm, actual prejudice. 

The fair trial/jury pool argument is very seductive. We all want the process to be fair and we want the bad guys to get punished. It is seductive, but it is irrelevant to the question of whether an independent report about far more than the defendant’s legal actions and culpability should be released to the public in accordance with the law. 

By hiding behind the defendant’s rights and the need for a pristine jury pool, the university is avoiding public scrutiny and accountability for its own actions that have nothing, zero to do with the alleged shooter’s guilt under the criminal law statutes.

So what’s really going on? Why are these promises of answers and action going unfulfilled? The Richmond school board was surprisingly forthright about it when it voted Nov. 20 not to release the report.

"I'm not willing to put us or compromise the integrity of this process, opening up ourselves for litigation," Board member Dawn Page said. "What's the purpose of paying money for legal to provide us advice when we are not willing to adhere to their perspective on certain legal issues?"

The school board's attorney warned the body that releasing the report would have "legal ramifications as well as insurance coverage issues."

The district's insurance company VAcorp was present at Monday night's meeting to brief the board in closed session regarding the release of the report.

Liability. They’re worried about liability. And truth — through publicly funded independent reports kept secret from families, communities and citizens — is the ultimate casualty.