Va. Dep't of Corr. v. Surovell

• Decision Date: 17 September 2015
• Docket Number: Record No. 141780.
• Citation: 290 Va. 255,776 S.E.2d 579
• Parties: VIRGINIA DEPARTMENT OF CORRECTIONS v. Scott A. SUROVELL.
• Court: Virginia Supreme Court

290 Va. 255

776 S.E.2d 579

VIRGINIA DEPARTMENT OF CORRECTIONS

v.Scott A. SUROVELL.

Record No. 141780.

Supreme Court of Virginia.

Sept. 17, 2015.

Margaret Hoehl O'Shea, Assistant Attorney General (Mark R. Herring, Attorney General; Kate E. Dwyre, Assistant Attorney General, on briefs), for appellant.

Frank Pietrantonio, Reston (Erik B. Milch ; Reston, MaryBeth W. Shreiner ; Michael J. Mortorano ; Reston, Robert E. Lee; Glen Allen, Cooley LLP; Virginia Capital Representation Resource Center, on brief), for appellee.

Amicus Curiae: Virginia Coalition for Open Government (Steven Rosenfield, on brief), in support of appellee.

Present: LEMONS, C.J., GOODWYN, MIMS, McCLANAHAN, POWELL, and KELSEY, JJ., and MILLETTE, S.J.

Opinion

Opinion by Justice CLEO E. POWELL.

The Virginia Department of Corrections (“VDOC”) appeals a judgment of the Circuit Court of Fairfax County (“circuit court”) granting, in part, a verified petition for writ of mandamus (“petition”) filed by Scott A. Surovell (“Surovell”). In his petition, Surovell requested “documents pertaining to various aspects of executions conducted in Virginia from VDOC through the [Virginia Freedom of Information Act, Code § 2.2–3700 et seq. ]” (“VFOIA”).

I. BACKGROUND

Following a hearing on Surovell's petition, the circuit court ordered VDOC to produce the following documents: (1) Document 7a, the detailed floor plan of the execution chamber (“L–Unit”) at Greensville Correctional Center in Jarratt, Virginia (“Greensville”), in full; (2) Document 7b, the detailed diagram of the control panel and the wiring for the electric chair, in full; (3) Documents 8a–8f, the manufacturer's installation and instruction manuals for the electric chair, in full; and (4) Documents 9a–9f, the current and prior execution manuals, “in redacted form with the information relating to the transportation from Sussex I¹ exempt and the information from the time pertaining to the L–Unit produced.”²

Michelle Howell (“Howell”), the Legal Issues Coordinator for VDOC, handled Surovell's VFOIA request. Howell testified that the floor plan of the L–Unit is very detailed and shows where the entrances and exits to the execution chamber are located. The manufacturers' manuals are also highly detailed in that they show schematics for equipment used on the electric chair and how they are installed, maintained, and operated. Howell testified that the L–Unit's security could be affected by disclosure of these documents because it could allow someone to interrupt an execution by knowing how the electric chair was installed and “where the lines ran out.” Howell also testified that it was a long-standing policy that VDOC's execution manuals were “security document[s]” not to be released.

Arnold Robinson, Chief of Corrections Operations for VDOC, testified as an expert in the field of corrections operations. As part of his job, Robinson assesses security issues within VDOC and oversees yearly evaluations to ensure each VDOC facility is “prepared for anything that could confront us as an agency.” Robinson has been involved in security planning when a death row inmate is moved from Sussex I to Greensville.

Robinson testified that the execution chamber is housed in the L–Unit, which is a maximum-security level facility inside of Greensville, which is a medium-security level prison facility. The L–Unit is 30 feet away from other prison structures and is surrounded by a 12 to 16 foot high double perimeter fence. Greensville itself is surrounded by a double perimeter fence with six guard towers.³ There are more than six gates between the entry point at Greensville to the L–Unit. While the L–Unit can hold up to three condemned inmates, only one inmate at a time has been in it during Robinson's time as Chief of Corrections Operations. The execution team, along with members of VDOC's executive staff, have access to the execution chamber along with maintenance staff accompanied by support personnel.

Robinson discussed various escape attempts, from the 1984 escape of six condemned inmates to John Allen Muhammad's plan to escape while being moved to the L–Unit. Robinson testified that people who are for or against the death penalty, as well as media, are assigned designated areas just outside of Greensville on the day of an execution. Robinson claimed that VDOC was aware of the groups on either side of the issue that had “the potential to do extreme harm, meaning assault the facility.” Prior to and on the day of an execution, VDOC is concerned about internal and external threats that could disrupt the execution as well as maintaining the orderly operation and safety of Greensville, which has over 3,000 inmates and 1,000 staff, and any number of public visitors.

Robinson stated that a prison riot occurred over 30 years ago and some staff were injured, but the execution proceeded anyway. Several years ago, a witness to an execution attempted to leave—which would have thwarted the execution because, by statute, a set number of witnesses are needed; however, a replacement was found. Robinson stated that this could have been a security issue depending on the reaction by the victim's family. Robinson testified that VDOC brings additional staff to deal with external or internal contingencies on the day of an execution, and that VDOC is prepared should an external threat, such as a vehicle or heavy weaponry, or an internal threat, such as a smuggled in weapon, be used to attack the L–Unit in an attempt to disrupt an execution.

Robinson testified to concerns about the safety of the members of the execution team and their ability to do their jobs should information relating to them or the inner workings of the execution unit ever be disclosed. However, Robinson testified that contingency plans are in place in case anything should happen during an execution. Robinson was also concerned about the safety of the condemned inmate in that, prior to the execution, the inmate could attempt to harm himself, or the victim's family could try to do something to the inmate.

Robinson identified the following security concerns about disclosing the withheld documents. Regarding the floor plan for the execution chamber, Robinson was concerned because it identifies the security components in place, potential areas of weakness, and the layout of the wiring to the electric chair. Regarding the electrical schematic, Robinson was concerned because it could allow people to come up with plans to stop an execution which “could result in harm to staff.” Regarding the manufacturers' manuals, Robinson was concerned that they are specific to the electric chair in Virginia and that individuals who knew the components could use that information to plan to attack the system and the facility in order to stop the execution.

The VDOC's execution manuals detail “the step-by-step process that has to occur in an execution.” The execution manuals also “delineate[ ] the process and approximate[ ] the ... specific times” for events occurring in that process. The execution manuals do not specify when an inmate has to be transferred from Sussex I to the L–Unit, but they do outline the process for the transfer. Robinson was concerned that disclosure of the execution manuals could “allow someone to know the specifics about how we manage and operate that unit, [and] that they then could take that knowledge, if it was made public, and use it in a way to plan to stop, harm, or kill individuals involved in that process. They include the offender.”

Jonathan Sheldon, an attorney who has observed three executions, one by electrocution and two by lethal injection, testified on Surovell's behalf. Sheldon described the general layout of Greensville, how he has become approved to attend an execution, the process he undergoes to gain entry to Greensville and the L–Unit on the day of an execution, the security measures in place, the layout of the execution chamber, and his observations of what has occurred during the executions he has observed. Sheldon stated he took notes during an execution and kept them for future reference. Sheldon also admitted to speaking to a member of the execution team and to a doctor who attended executions without any confidentiality issues.

At the conclusion of the hearing, the circuit court announced findings that

7A and B, I'm not finding that the security exemption is well placed, here; I'm going to require disclosure of 7A and 7B, as well as 8A–8F, ... the manufacturers' manuals. I don't think that that is a bona fide security concern; I'm going to require disclosure of that.

And as far as the execution manuals, I think we all agree that transporting the prisoner from Sussex I to Greensville, and the protocol of that, and the details of that are genuine security concerns that were disclosed, but I think certainly from the time that the inmate arrives at [the L–Unit], it's not a bona fide security concern, so I'm going to require the production of the manual, those pages that relate to and appendices which relate to ... what happens from the moment the prisoner arrives in [the L–Unit] until the completion of the execution.

II. Analysis

A. Standard of Review

“Under well-established principles, an issue of statutory interpretation is a pure question of law which we review de novo.” Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007).

Whether documents ... should be excluded under Code § 2.2–3705.[2(6) ] is a mixed question of law and fact. See Napper v. ABM Janitorial Servs., 284 Va. 55, 61, 726 S.E.2d 313, 316 (2012). Therefore, “[w]e give deference to the trial court's factual findings and view the facts in the light most favorable to the prevailing part[y,] but we review the trial court's application of the law to those facts de novo.” Tuttle v. Webb, 284 Va. 319, 324, 731 S.E.2d 909, 911 (2012) (quoting Caplan v. Bogard, 264 Va. 219, 225, 563 S.E.2d 719, 722 (2002) ).

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