Freedom of Information

The following letter was posted to SaveTheWrenCross.Org and is bi-locating here:

Brian Whitson
FOIA Officer and Director of News Services
College of William & Mary
P.O. Box 8795
Williamsburg, VA 23187-8795
Tel: 757.221.7876
Email: bwwhit@wm.edu

RE: FOIA REQUEST FOR CORRESPONDENCE RELATED TO WREN CROSS CONTROVERSY

Dear Mr. Whitson:

Thanks very much for your response dated December 19, 2006, in connection with my second, and more narrowly focused request under Virginia’s Freedom of Information Act (FOIA), dated December 15, 2006, which was preceded by my original FOIA request dated November 28, 2006.

In my last correspondence, I requested under Virginia FOIA copies of all electronic mails received by President Gene Nichol that include the following two words “chapel” and “cross” for the period October 25, 2006 until December 15, 2006.

In your response dated December 19, 2006, you cited Va. Code § 2.2-3705.7(2), which you indicated provided an exclusion under Virginia FOIA for the correspondence I requested. That section of the FOIA provides for the following excluded items from VA FOIA: “Working papers and correspondence of the Office of the Governor; Lieutenant Governor; the Attorney General; the members of the General Assembly or the Division of Legislative Services; the mayor or chief executive officer of any political subdivision of the Commonwealth; or the president or other chief executive officer of any public institution of higher education in Virginia.”

Your December 19 letter stated that there is a legally provided for exclusion for the records I seek; your letter did not explicitly deny my request for the records.

This letter seeks clarification.

I am a 1989 graduate of William and Mary. I am a Virginia taxpayer. I have followed the controversy over the removal of the Wren Cross from Wren Chapel, including the story about it in yesterday’s Washington Post. I earlier came across the website SaveTheWrenCross.org and learned a great deal about the facts and circumstances surrounding this issue. I learned even more on the related blog site savethewrencross.blogspot.com. I am grateful for this site and blog since I have received no notification from the College about what is taking place, which is perplexing since the College knows how to get in touch with me to ask me for money. As an alumnus, the lack of direct communication from the College on this issue makes me quite angry as I am learning about the story from newspapers, television reports, emails, and websites, but not from the College. And yes, I added my name to the SaveTheWrenCross.org petition.

Gene Nichol has recently written that since the time he made his decision to remove the Wren Cross that he has “heard from students, staff, faculty, alumni, friends--some supportive, many critical.”

I have submitted a FOIA request so that I can learn first hand what the ratio of displeasure to support is for Nichol’s decision. Indeed, I would like to know what faculty and alumni are writing about this official decision. I am not interested in names. You can redact those. I want to know how many people are writing Nichol and what their arguments are, pro and con.

This letter seeks clarification.

Advisory opinions issued under the authority of the Virginia Freedom of Information Advisory Council indicate that the “working papers and correspondence” exclusion is comparable to executive privilege.

Executive privilege, like any statutory right – such as the “working paper and correspondence” exclusion, need not be invoked. Or, if invoked, it can always be waived by the official who holds the privilege or statutory right.

For example, I learned from the op-ed in the Richmond Times-Dispatch by William and Mary senior Will Coggin, dated December 18, 2006 that the College had released a letter of complaint about the display of the Wren Cross in Wren Chapel. The op-ed indicates that this letter was addressed to President Nichol, began with the words “Dear Gene”, and that it was dated October 4, 2006. This is a good example of a case in which the College had decided to not invoke (or had waived) its privilege under the “working paper and correspondence” exemption under Va. Code § 2.2-3705.7(2) you cited in your letter to me dated December 19, 2006.

This is the clarification I seek: Is President Nichol claiming and invoking executive privilege (under the “working paper and correspondence” exclusion of Virginia FOIA) to reject my request for copies of all correspondence addressed to him that oppose (and those that support) his decision to remove the Wren Cross from Wren Chapel? If Nichol is invoking executive privilege, I would like an explanation for his withholding copies of this correspondence.

I look forward to your response.

Sincerely,

LANCE B. KYLE

cc:

Gene R. Nichol, President, College of William and Mary
Michael K. Powell, Rector, W&M Board of Visitors
Henry Wolf, Vice Rector, W&M Board of Visitors
Suzann W. Matthews, Secretary, W&M Board of Visitors
Alvin P. Anderson, Member, W&M Board of Visitors
Charles A. Banks, Member, W&M Board of Visitors
Robert A. Blair, Member, W&M Board of Visitors
Janet M. Brashear, Member, W&M Board of Visitors
Thomas E. Capps, Member, W&M Board of Visitors
John Gerdelman, Member, W&M Board of Visitors
Sarah Gore, Member, W&M Board of Visitors
R. Philip Herget III, Member, W&M Board of Visitors
Jeffrey L. McWaters, Member, W&M Board of Visitors
Joseph J. Plumeri II, Member, W&M Board of Visitors
Anita Poston, Member, W&M Board of Visitors
John Charles Thomas, Member, W&M Board of Visitors
Jeffery B. Trammell, Member, W&M Board of Visitors
Barbara B. Ukrop, Member, W&M Board of Visitors
Bob McDonnell, Attorney General of Virginia
Andy Petkofsky, Richmond Times-Dispatch
Robert Unruh, WorldNetDaily
SaveTheWrenCross.org
Heather Sells and Sarah Cron, CBN Television
Sharon Schiff, The Virginia Gazette
Josh Pinkerton, The Flat Hat
Alexandra Cochrane, The Flat Hat
Jon San, The Virginia Informer
Terrance "TK" Kelly, WTKR
Seth Freedland, Daily Press
Fredrick Kunkle, The Washington Post