VIRGINIA

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
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.

2
 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-

injection-drug/2014/02/21/c93d68b0-9af6-11e3-975d-107dfef7b668_story.html (attached hereto

as Exhibit 1) (noting that VDOC approved the use of the drug midazolam, without the

involvement of Virginia lawmakers).

3
 16. Upon information and belief, representatives of VDOC have obfuscated its plans

regarding the lethal injection process and protocol in reports to the House of Delegates. A

VDOC spokeswoman stated that VDOC could not carry out death sentences by lethal injection

because it lacked certain drugs required by its protocol. Relying on that statement, the House of

Delegates passed legislation that would make electrocution the default method if lethal injection

drugs are not available.1 See http://www.timesdispatch.com/news/state-regional/virginia-

politics/virginia-has-some-lethal-injection-drugs-lacks-anesthetic/article_5af65f64-941c-11e3-

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).

4
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

http://www.washingtonpost.com/news/morning-mix/wp/2014/04/30/botched-oklahoma-

execution-reignites-death-penalty-debate/ (attached hereto as Exhibit 5). The inmate was

confirmed “unconscious” ten minutes after being injected with midazolam. Minutes later, the

inmate “began breathing heavily, thrashing and straining to lift his head,” and even spoke. Id.

21. Just days ago, there was another problematic execution using midazolam. On

July 23, 2014, midazolam was used in an Arizona execution which lasted nearly two hours. See

http://www.washingtonpost.com/news/post-nation/wp/2014/07/23/arizona-supreme-court-stays-

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).

5
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

Commonwealth steadfastly opposed disclosure, citing security concerns (as here):

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.

6
 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.

7
 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).

8
 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).

9
 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

Sodium (to induce unconsciousness); (b) Pancurium Bromide or Rocuronium Bromide (to stop

breathing); and (c) Potassium Chloride (to stop heart functioning). Ex. 13.

45. The General Overview leaves many open issues regarding lethal injections,

including but not limited to: (1) how members of the execution team are selected; (2) the title,

qualification, and background, if any, required of the person(s) entrusted with mixing the drugs,

inserting the IV lines, and administering the drugs; (3) the involvement of a physician; (4)

whether the inmate is attached to a heart monitor; (5) if/how unconsciousness is confirmed after

10
administration of the first drug; (6) the amount given of each drug and how that amount is

determined; (7) the procedure used if the inmate is still alive after the drugs are administered;

and (8) whether the governor/court is contacted prior to commencing the execution.

46. VDOC has asserted the exemption codified at Va. Code Ann. § 2.2-3705.2(6)

(“Security Exemption”) to justify its refusal to produce the Execution Manuals. This section

exempts “[O]perational, procedural, tactical planning or training manuals … the disclosure of

which would reveal surveillance techniques, personnel deployments, alarm or security systems

or technologies, or operational and transportation plans or protocols, to the extent such disclosure

would jeopardize the security of any governmental facility, building or structure or the safety of

persons using such facility, building or structure.” Va. Code Ann. § 2.2-3705.2(6) (emphasis

added).

47. In both Request 23 and Request 30, Petitioner proactively requested that, if

VDOC withheld documents on account of the Security Exemption, VDOC either produce

redacted versions of the responsive documents or “provide a detailed explanation of, and any

records supporting, how disclosure of any part of the document ‘would jeopardize the security of

any governmental facility, building or structure,’ after sensitive information is redacted.” See

Ex. 9 at Requests 23 and 30.

48. Nevertheless, VDOC failed to produce a redacted copy of the Execution Manuals.

It is implausible that the entirety of the content of the Execution Manuals is protected by the

Security Exemption. See Ex. 11 (“Interpreting the FOIA exemption narrowly, as is required by

law, it would appear that only some of the procedures required to be developed by the above-

mentioned regulation would fall under the [Security] exemption ….The exemption at issue does

not exempt all procedural records or manuals solely because they may be related to security

11
issues. Instead, the exemption only applies to those records whose disclosure would jeopardize

the security of the building or the safety of the persons using the building.”).

49. VDOC withheld the Execution Manuals in full, but did not explain its basis for

doing so. The Response did not explain how disclosure of the Execution Manuals would

jeopardize security and, in fact, did not in any way explain its basis for withholding the

documents on account of the Security Exemption. VDOC also provided no justification for its

decision to refuse to provide redacted versions of these documents. Moreover, VDOC further

failed to comply with Va. Code § 2.2-3704(B) and Petitioner’s request for “any records

supporting” the claimed exemption, because it did not (a) provide any records supporting that

exemption, (b) state that such records exist but were being withheld, or (c) state that such records

do not exist. Instead, VDOC baldly quoted the language of the Security Exemption without any

supporting facts.

50. VDOC’s failure to produce copies of the Execution Manuals – in either redacted

or unredacted form – appears improper for a number of reasons:

Witnesses:

51. Virginia Code requires that four media witnesses and six citizen witnesses – not

employed by VDOC – attend each execution. See Va. Code Ann. § 53.1-234. The General

Overview reiterates that witnesses are required to attend all executions.

52. Upon information and belief, the citizen witnesses are briefed on the execution

process by a VDOC representative and permitted to ask questions.

12
 53. Witnesses to executions do not appear to be prohibited from giving their accounts

of the execution procedure to the general public.5 See http://voices.washingtonpost.com/crime-

scene/josh-white/larry-bill-elliott-60-was.html (attached hereto as Exhibit 14) (describing the

process of electrocution); http://www.washingtonpost.com/wp-

dyn/content/article/2006/12/09/AR2006120900923.html (attached hereto as Exhibit 15)

(describing the process of electrocution); http://www.dailymail.co.uk/news/article-

1314993/Teresa-Lewis-execution-I-watched-woman-die-One-witness-hand-account.html

(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.

13
 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.

14
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

execution process, emergency response operations, key control, room numbers, cell numbers,

key numbers, types of locks used, names of personnel involved, checklists, as well as the names

of individuals whose safety and security could be compromised by disclosure. Release of the

complete documents creates a potential security breach of CDOC and jeopardizes the safety and

security of the inmate population, CDOC staff, and the public.” Id. at 6.

64. However, the court ordered the Colorado Department of Corrections to produce a

redacted copy of the execution protocol: “The CDOC’s interest in keeping certain security

sensitive information in the protocol away from any public forum outweighs any need that the

public may have in this information. On the other hand [a] properly redact[ed] copy of the

15
Execution Protocol does not. By ‘properly redacted copy’ the Court means the removal of any

information that creates a potential security breach of CDOC and jeopardizes the safety and

security of the inmate population, CDOC staff, and the public; and it would compromise prison

operations associated with the execution process.” Id. at 9.

65. Publicly-Available Execution Protocols: It is likewise instructive that numerous

other states make their detailed execution protocols publicly-available. Petitioner’s counsel

conducted internet research and found the following protocols readily available:

a. Florida - Execution By Lethal Injection Procedures: The state posts this

highly-detailed 13-page execution procedure online. The procedure

covers, inter alia: the credentials required for various members of the

execution team; contingencies that the team is trained to handle; and the

quantity of each drug used for lethal injections. See

http://www.dc.state.fl.us/oth/deathrow/lethal-injection-procedures-as-

of_9-9-2013.pdf (attached hereto as Exhibit 19). Florida ranks fourth in

the country for the most executions since 1976. See

http://www.deathpenaltyinfo.org/number-executions-state-and-region-

1976 (attached hereto as Exhibit 20).

b. Ohio – Execution: The state posts a highly-detailed 19-page execution

procedure online. The procedure covers, inter alia: the credentials

required for a “medical team member;” pre-execution medical assessments

conducted; the determination of which drugs to use for lethal injections;

and the quantity of each drug used for lethal injections. See

http://www.drc.ohio.gov/web/drc_policies/documents/01-COM-11.pdf

16
 (attached hereto as Exhibit 21). Ohio ranks eighth in the country for the

most executions since 1976. See Ex. 20.

c. North Carolina – Execution Procedure Manual For Single Drug Protocol

(Pentobarbital): The state posts a highly-detailed 20-page execution

procedure online. The procedure covers, inter alia: perimeter security;

the means of restraining inmates; credentials required for execution team

members; pre-execution medical assessments conducted; and the quantity

of each drug used for lethal injections. See https://www.ncdps.gov/

div/AC/Protocol.pdf (attached hereto as Exhibit 22). North Carolina ranks

ninth in the country for the most executions since 1976. See Ex. 20.

d. Arizona – Execution Procedures; Preparation And Administration Of

Chemicals: The state posts a highly-detailed 21-page execution procedure

online, in addition to a 7-page procedure pertaining to the lethal injection

chemicals. The procedures cover, inter alia: credentials required for

“intravenous team members;” the use of compounding pharmacies; and

the quantity of each drug used for lethal injections. See

http://www.azcorrections.gov/policysearch/700/0710.pdf (attached hereto

as Exhibit 23). Arizona ranks eleventh in the country for the most

executions since 1976. See Ex. 20.

e. Montana – Execution Technical Manual: The state posts an incredibly

detailed 156-page protocol online. The procedure covers, inter alia:

security of prison grounds; credentials required for the person

administering the lethal injection; all drugs and other materials used for

17
 lethal injection; the means of restraining inmates; and the quantity of each

drug used for lethal injections. See http://www.cor.mt.gov/

content/Resources/Reports/ETManual.pdf (attached hereto as Exhibit 24).

f. Nebraska – Execution Protocol: The state provides its execution protocol

in the state administrative code, available online. The procedure covers,

inter alia: credentials required for the “IV Team;” methods of checking

for consciousness; and the quantity of each drug used for lethal injections.

See http://www.sos.ne.gov/rules-and-regs/regsearch/Rules/

Correctional_Services_Dept_of/Title-69_Execution_Protocol/Chapter-

11.pdf (attached hereto as Exhibit 25).

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.

18
 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:

19
 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.

20
 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.

21
 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.”).

22
 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).

23
 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

Panel schematic / diagram (collectively “Electrocution Specification Documents”). See Ex. 10

at Responses 33-34 (emphases in original).

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.

24
 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

25
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

26
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

27
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

28
 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.

29
 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,

83 Va. Cir. 482, No. CL–2011–1344, 2011 WL 8947653, at *1 (Va. Cir. Ct. Nov. 22, 2011)

(denying motion to quash and explaining that third-party patient records were adequately

protected through redaction and a protective order).8 VDOC can redact personally identifying

information from the execution documents to provide adequate protection.

118. Third, it is difficult to understand how the Security Exemption is applicable to

either the execution log or security log. VDOC has not elaborated on the content of either

document, but each presumably records the circumstances surrounding executions, many if not

most of which are viewed by numerous citizen witnesses. In addition, the logs are several years

old in a number of the cases. It is difficult to understand how disclosure of a log from a 2009

execution could be used to jeopardize VDOC facilities today.

8
Although this case did not involve VFOIA disclosures, its principles are still instructive.

30
 119. Regarding the execution logs and security logs, 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 produce, within five days, copies of the

execution logs and security logs from the past five years. Regarding the alleged imprisonment

and health records, 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.

Petitioner requests that the Court order Respondent to produce, within five days, redacted copies

of inmates’ records showing their respective times of death.

120. 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.

121. Petitioner also requests an award of attorneys’ fees and costs pursuant to Va.

Code Ann. § 2.2-3713(D).

31
 COUNT SIX
(Violation of the Virginia Freedom of Information Act:
Access to Public Records – Facts Pertaining To Lethal Injection Drugs)

122. Petitioner repeats and incorporates by reference the allegations in paragraphs 1

through 121.

123. Petitioner submitted a Request pertaining to the decision-making surrounding the

drug(s) used for lethal injections: “All documents concerning the decision of whether to use a

single-drug, two-drug, three-drug, or other formula to carry out executions by lethal injection.”

Ex. 9 at Request 24.

124. To the extent that the responsive documents were subject to an applicable

privilege, Petitioner requested disclosure of the facts contained in the responsive documents.

125. In its Response, VDOC identified one working paper from 2012 and two letters

from 2013 as responsive to the Request (collectively the “Lethal Injection Papers”). VDOC

withheld the Lethal Injection Papers in full, citing in part the attorney-client privilege.9 VDOC

did not agree to produce any documents – or the facts contained therein.

126. Case law explains that the attorney-client privilege cannot be used to shield

underlying facts. See Patel v. Allison, 54 Va. Cir. 155, Nos. CL97-1398, CL97-1399, CL98-

1519, CL99-1371, CH99-2066, CL99-1102, 2000 WL 33650022, at *3 (Va. Cir. Ct. Oct. 30,

2000) (citing Thomas E. Spahn, Virginia's Attorney-Client Privilege and Work Product

Doctrine, Third Edition (Virginia Law Foundation) (1998), § 2.203); Industrial Chems., Inc. v.

Rehrig Int’l, Inc., 2 Va. Cir. 147, No. LG 148, 1983 WL 210337, at *1-2 (Va. Cir. Ct. Sept. 21,

1983) (citing Upjohn Co. v. United States, 449 U. S. 383, 395 (1981)).

9
Petitioner does not dispute that the Lethal Injection Papers are protected in part by the attorney-
client privilege.

32
 127. Case law has further clarified that a non-privileged document does not become

privileged by virtue of being sent to an attorney. See Virginia Elec. and Power Co. v.

Westmoreland-LG & E Partners, 259 Va. 319, 325, 526 S.E.2d 750, 755 (2000) (“The attorney-

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.

33
 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,

34
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).

35
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.

36
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: fpietrantonio@cooley.com
E-mail: emilch@cooley.com
E-mail: mshreiner@cooley.com
E-mail: mmortorano@cooley.com

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: roblee@vcrrc.org

Counsel for Petitioner

106131606

37