December 7, 2018

Governor Uses Loophole to Hide Documents in Responses to FOIAs on Air and Water Boards, Meeting with Dominion

In response to requests for documents about meetings and deliberations that may relate to Dominion Energy’s proposed Atlantic Coast Pipeline, the Governor’s office has supplied some records but has withheld other, crucial information. When faced with a choice between open government and concealment, Governor Northam made the wrong choice, relying on state law provisions that allow, but do not require, him to shield certain public information from the people of Virginia.

We are disappointed that the Governor has refused to release all the records we requested. The result is, while we have acquired some information, those documents do not answer vital questions that many Virginians are asking:

Did Governor Northam manipulate the process for Air Board appointments to influence the upcoming decision on Dominion’s proposed Buckingham compressor station for the Atlantic Coast Pipeline (ACP)?

Did Governor Northam discuss the ACP and Air Board appointments in a private meeting with Dominion officials on November 19, when a public furor over the changes in Air Board membership was raging?

As we stated in our FOIA requests, while we anticipated that the administration may claim the exemptions provided in the statute, we hoped they would choose to let the public see the records.

Statements from the Northam administration about the Air Board personnel changes have been met with widespread public skepticism (See: Northam’s struggle to explain air board move suggests it’s exactly what it appears to be, Virginia Mercury, December 5; Ugly episode:’ Northam allies slam his decision to alter board before Dominion vote, Washington Post, November 27; Northam can seek independent voices, or mere rubber stamps, for his boards, Virginian-Pilot, November 23). If assertions provided by administration spokespersons are true, the Governor could only benefit from a full public airing of the records. His hesitancy to do so can only contribute to Virginian’s doubts and taint the regulatory process for the ACP.

Here’s what Wild Virginia did receive via emails from the Governor’s office late on December 6th:

Air and Water Board Member Removals/Appointments
The email responding to the FOIA request can be found here The administration states that “the Office is withholding five documents pursuant to Virginia Code Section 2.2-3705.7(2).” This Code section allows for withholding of records deemed to be “working papers” in the possession of the Governor’s office.

At this link is a document combining a series of emails and other correspondence to (and between) government officials regarding both Air and Water Board membership. Many of the records include recommendations from various parties for members of both Boards, applications and resumes from candidates, and correspondence with members of the news media.

It is notable that there are emails from late October through November 7, 2018 where administration officials mention plans to discuss Air and Water Board appointments, indicating that these processes had begun before the Air Board’s November 9 meeting. However, there is a gap in the correspondence within the Governor’s office followed, abruptly, by letters from the Governor dated November 16, 2018 asking the Secretary of the Commonwealth to prepare commissions for the prospective appointees. The key factor, the advice and reasoning followed in making these decisions, is entirely missing.

Excluded Information 
Again, the excluded information could possibly answer some of the questions to which the public demands answers. The bottom line is that we still don’t know whether the Governor’s actions were influenced by concerns that the dismissed Air Board members, Ms. Rubin and Mr. Bleicher, had expressed about DEQ’s proposed Air permit for the Buckingham compressor station.

The Meeting Between Governor Northam and Thomas Farrell
Thomas Farrell, Dominion’s president and CEO, met with the Governor on November 19, a fact that is known to the public only because citizens received a tip and filmed Farrell leaving the office. We and others wanted to know whether the Air Board and ACP were discussed at that meeting.  Again, the Governor’s office withheld two records under the “working papers” allowance (access Northam FOIA Farrell mtg. 12.6.18)

In emails setting up the meeting parties mention an initiative between Dominion and Smithfield addressing “a major methane containment proposal” as the stated purpose for the meeting. Given that the Governor’s office has cited this same reason for the meeting and that the project has now been widely publicized, if no other matters were discussed, we must wonder what those concealed records pertain to.

We believe the circumstances surrounding the Air Pollution Control Board appointments continue to create a question whether principles of due process have been breached for the Buckingham compressor station permit. We hoped the Governor would remove this cloud of doubt.

Wild Virginia calls on the Governor to correct this problem and we call on our members across Virginia and our allies to continue to call for Rubin and Bleicher to be allowed to vote at next week’s Air Board hearing. The people of Union Hill and all Virginian’s are depending on a fair process and this action can help ensure it.

Link to the Wild Virginia Press Release