Virginia won't release 71 emails about the icy nightmare on I-95

Posted at 6:42 PM, Feb 12, 2022
and last updated 2022-02-12 18:42:19-05

RICHMOND, Va. -- Randy Anderson drew on his patience when he spent roughly 30 hours stuck on Interstate 95 during an early January snowstorm.

"We were fortunate. It was not something I would ever want to repeat," Anderson said.

And, he's using it again now as he awaits an explanation from state leaders.

"The people of Virginia deserve answers," Anderson said.

While a multi-agency investigation is underway, the CBS 6 Problem Solvers submitted a Freedom of Information Act request to the Virginia Department of Emergency Management (VDEM) requesting all emails to and from their leadership at the time, Curtis Brown, related to the event.

VDEM replied with six emails and withheld 71 emails.

The agency stated those 71 emails were unavailable for release as they were being kept privileged as part of the [now former] Governor Ralph Northam's confidential working papers.

"Should we be surprised?" Anderson asked. "There is probably information in those 71 emails that they do not want the general public to know at this point."

In one released email, sent at 4:05 a.m. on Tuesday, January 4, roughly eight hours after Anderson was stranded, Brown said he was coordinating a call with state agencies to "identify unmet needs and resources required," and to decide if an "emergency declaration" was necessary.

APTOPIX Winter Weather Interstate Shutdown
Drivers wait for the traffic to be cleared as cars and trucks are stranded on sections of Interstate 95 Tuesday Jan. 4, 2022, in Carmel Church, Va. Close to 48 miles of the Interstate was closed due to ice and snow. (AP Photo/Steve Helber)

"It wouldn't have taken a whole lot of thought process to realize we've got an emergency on our hands at an earlier time," Anderson said.

But, no emails were shared related to the outcome of that call.

A State of Emergency was never issued.

"What did happen in that meeting?" Anderson asked. "I think that would be interesting to know."

Bill Leighty, former Chief of Staff for Governors Tim Kaine and Mark Warner, said he's very familiar with the working papers exemption under Virginia FOIA law, and he has used it many times himself.

He said it exists for good reason.

"On the morning of the Virginia Tech shootings, we received FOIA requests for our emails within hours after the shooting started. The exemption is very much because when you're in the heat of the moment and you're trying to deal with the situation you can't be distracted by the FOIA requests themselves," Leighty said.

In this case, he said the after-action report may be the reason why VDEM withheld 71 emails.

"We don't want to prejudice the investigation by releasing them and having stories written about them before the fact-finders reach their own conclusions," Leighty said.

However, Leighty believes the privilege is overused.

"The people have the right to see what happens in these decision-making situations, and I just believe there is too often the case that governors don't want to be second-guessed so they don't release this kind of stuff," Leighty said.

To that point, Megan Rhyne, who advocates for the public's right to access government records as the Executive Director of the Virginia Coalition for Open Government said withholding these records is a choice, not a mandate.

"The exemption, just like any exemption in the FOIA, is discretionary, which means they do not have to use it. They can, but they don't have to," Rhyne said.

The Virginia Coalition for Open Government has tried in the past to get the General Assembly to narrow this exemption down, but their attempts have been unsuccessful.

The exemption came up last week when reporters tried to FOIA emails sent to Governor Glenn Youngkin's education tip line "".

Youngkin's administration denied the request from WUSA stating the records were "being entirely withheld as working papers and correspondence of the Office of the Governor."

"It's confidential we do not report on anything from constituent services, it would be inappropriate to comment anything in the content, it would be like you were writing a letter to me and me disclosing it," Youngkin said.

But Rhyne told WUSA there are ways to provide information while protecting someone's identity.

"They can take the names of the callers out, they can take the names of the teachers who are praised or complained of, there are a number of different ways they can package the information they don't have to withhold it altogether," Rhyne said.

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