GAO Briefs Virginia Court on Desperate Move by Attorney General Herring to Avoid FOIA Disclosure

By Chris Horner

Yesterday, Government Accountability & Oversight, P.C., with local counsel Graven Craig, responded to a risible effort (see PDF document here) recently filed by Virginia’s Attorney General Mark Herring, styled as a “Plea of Nulla Bona”, in a public records suit in the Circuit Court for Richmond (Virginia).

That “artful pleading” came in a state Freedom of Information (FOIA) suit relating to a national scandal, filed by GAO on behalf of Virginia citizen and taxpayer Chris Horner, and the Competitive Enterprise Institute (CEI). 

Specifically, the suit seeks to obtain what legal analysis could possibly have led Herring’s Office to vow, to a group funded by billionaire climate activist Michael Bloomberg, that the AG has legal authority to accept a Bloomberg-funded “Special Assistant Attorney General “to advance the agenda represented by” Bloomberg’s group.

That agenda is to “advanc[e] progressive clean energy, climate change, and environmental legal positions”.

Virginia’s legislature recently slapped down OAG’s effort to join Bloomberg’s scheme, in a remarkable application for private resources “to advance the agenda represented by” the donor’s group.

OAG insists it has “no records” preparing or reflecting how it arrived at this outrageous position, despite the remarkable claim also flying in the face of the Virginia State Code, and even the Office’s own Special Counsel Policy.

On January 28, 2019, the Court overruled the AG’s highly questionable, first filing, a Demurrer (Virginia’s version of failure to state a claim), and instructed him “to file an Answer to the Petitioner’s Petition within 21 days of the date of entry of this Order”. On the date that Answer was due, February 18, 2019, the AG defied the Court and refused to do so, instead filing an extraordinary invention it calls a “Plea of Nulla Bona”.

As GAO points out in its brief, a Plea of Nulla Bona is not in fact a thing but was apparently concocted ad hoc to once again avoiding answering Horner’s petition.

As GAO also points out, this may well be related to OAG’s repeated hints that there are documents they would, if pressed, claim as exempt “working papers” but just don’t feel that they should have to identify them. That’s not how FOIA works. It also could be that the Office cannot help its instincts to deny by delay, or to cause the expenditure of ever more taxpayer and private resources in the process.

Regardless of the Virginia AG’s objectives, add this to the list of extraordinary moves by AGs lured into an ethically and legally dubious scheme to advance a major political donor’s agenda using their law enforcement offices. The parties will argue this matter next week in Richmond.


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