RICHMOND — Gov. Terry McAuliffe’s administration has not yet fulfilled a series of information requests from the lawyer the city of Charlottesville hired to review the violent white nationalist rally in August and how public officials planned for the danger that came with it.
Tim Heaphy, a former federal prosecutor hired to lead Charlottesville’s review, said in early September that he had requested information from state agencies and asked to interview state officials as he examines the coordinated response to the rally. As of last week, Heaphy said he had not been granted access to the records he was seeking.
“We have not yet received replies to the [Freedom of Information Act] requests we’ve submitted or the separate requests for information I’ve sent to various state agencies,” Heaphy said in an Oct. 9 email to the Richmond Times-Dispatch. “I continue to believe that information sharing is in the commonwealth’s interest, as well as that of our clients in Charlottesville.”
In early September, Heaphy said he wanted to review the assistance Charlottesville received from the Virginia National Guard, the Department of Emergency Management and the state police. Assessing the city-state coordination in the lead-up to the rally, Heaphy said at the time, will be “an important part” of the city’s review.
McAuliffe spokesman Brian Coy said Monday that the state has been in “ongoing discussions” with Heaphy but is prioritizing its own review, led by outside consultants with an estimated price tag of almost $300,000, ahead of the review spearheaded by the city. Charlottesville is paying Heaphy’s firm $545 an hour with an initial fee cap of $100,000.
Coy added that some of the records Heaphy wants are exempt from disclosure as protected law enforcement records or records connected to pending litigation.
The McAuliffe administration’s resistance to Heaphy — a white-collar criminal defense lawyer with Hunton & Williams — is perhaps the most significant sign of what some observers see as a puzzling air of secrecy surrounding the state’s efforts to review the rally, which led to the death of one anti-racism activist and was indirectly linked to a Virginia State Police helicopter crash that killed two troopers. Rally attendees on both sides have blasted the law enforcement response, accusing police of standing by and allowing melees to develop in the streets surrounding the downtown park where white nationalist groups intended to rally to defend a statue of Confederate Gen. Robert E. Lee.
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Because the McAuliffe administration does not consider the post-Charlottesville task force on civil unrest a public body, the meetings haven’t been announced on official state calendars. Before the task force started its work, its members — almost all of whom are government officials — were asked to sign a confidentiality agreement saying they understood that the disclosure of certain information could cause “irreparable harm” to the governor’s office. If improper disclosures were to occur, the statement reads, the governor’s office “may seek legal remedies.”
Coy said the after-action report the task force will produce will be released to the public, but he said the task force was not created for a “public airing” of the events in Charlottesville.
“It is for experts to advise the governor on actions that he should take to keep the public safe,” Coy said.
State Del. C. Todd Gilbert, a Shenandoah County Republican in line to become the next majority leader of the House of Delegates, said the House GOP welcomed the task force and asked that it be as transparent as possible but that he is “quickly losing confidence in it.” Gilbert said the task force has initially focused too much on the possibility of restricting guns at future rallies, and not enough on getting to the bottom of the “breakdown in public order that led to this tragic outcome.”
“I hope they are not using this opportunity to just pivot to what is otherwise lawful conduct when there was plenty of unlawful conduct that went unanswered that day until it was too late,” Gilbert said.
Coy said: “This may be political for some folks. But it’s not political for the governor or the folks on this task force.”
The task force is scheduled to have two more meetings before finishing its work next month.
Last month, the McAuliffe administration denied a FOIA request filed by the Richmond Times-Dispatch seeking records showing how public safety officials prepared for the rally at the state level. Pointing to a pending lawsuit that raises questions of legal liability and the “sensitive” nature of police tactics, the governor’s office said it was keeping the records confidential under the broadly defined working papers exemption and the executive privilege doctrine.
The state has hired The Olson Group, an Alexandria-based security consulting firm, to lead its review in conjunction with the International Association of Chiefs of Police. The contract allows up to $299,511 in billable hours, with top Olson Group employees charging at a rate of $320 per hour.
It’s not yet clear if a separate after-action report being prepared by the state police will be released.
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Though officials have vowed to fully examine what happened in Charlottesville and explore how similar fiascoes could be prevented in the future, the public work of the task force so far has focused largely on how the permitting process for political rallies could be tightened without curtailing free speech.
The ACLU of Virginia, which has been feuding publicly with McAuliffe after its decision to go to court to help defend the free speech rights of the white nationalist rally organizers, criticized the perceived lack of transparency in a recent letter requesting copies of an emergency regulation the task force has developed that sets new ground rules for rallies at the state-owned Lee statue on Richmond’s Monument Avenue.
In an interview, ACLU spokesman Bill Farrar said it was “kind of ridiculous” to think that only people already in government — not advocacy groups or the public — should be at the table to discuss post-Charlottesville policy issues.
“This is a highly public and highly contentious issue that a lot of people have opinions on,” said Farrar, who on Monday was still waiting for a response to his request to see the draft regulation. “We shouldn’t have to beg for these things or demand them.”
In an executive order, McAuliffe suspended permitted political rallies at the Lee statue until the task force could craft new rules. Once it’s in place, the emergency regulation will be subject to a public comment period.
Though the organizers of the white nationalist rally and the activists who turned out to protest it seem to agree that police did little to intervene as clashes broke out, the two sides have put forward two opposing theories. White nationalists have pushed the theory that the government took a hands-off approach as a pretense to declare the event a riot and shut down unpopular speech. Anti-racism activists, who are often sharply critical of police, have accused law enforcement of being unwilling to protect them against a white nationalist invasion.
Officials have adamantly denied that any stand-down order was given, but one counterprotester has filed a federal lawsuit claiming he was injured as police officers stood by and did nothing. The governor’s office cited the suit, which names both city and state officials, while explaining its reluctance to release documents related to the rally.
“In light of recently announced litigation, as well as because of the sensitive nature of law enforcement strategic and tactical decisions, we will await a more fulsome review of any materials related to the Aug. 12 incident before disclosing these items,” wrote Noah Sullivan, McAuliffe’s counsel. “We will reconsider releasing records after that is complete.”
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McAuliffe’s office announced the membership of the Task Force on Public Safety Preparedness and Response to Civil Unrest just two hours before the group’s first meeting on Sept. 12. The second meeting on Oct. 3 wasn’t announced at all. A reporter from the Richmond Times-Dispatch was allowed to sit in on both meetings, which the McAuliffe administration said wasn’t required because state open meeting laws, including a requirement to announce meetings three days in advance, don’t apply to advisory task forces created by the governor.
“It’s more analogous to one of our Cabinet meetings than it is to a formal, open public body,” Coy said.
Meghan Rhyne, the executive director of the Virginia Coalition for Open Government, said the state’s transparency law makes a distinction between advisory bodies created by another public body, such as a city council or the General Assembly, and panels created by an executive such as a mayor or a governor. The latter, she said, are not covered in the legal definition of public body.
“Do I like that definition and that distinction? No. Of course not,” Rhyne said. “And certainly when you’re dealing with an issue of such huge public interest, it seems to defy common sense to not hold these meetings publicly.”