ASHBURN, Va. (7News) — Virginia Attorney General Jason Miyares’ legal team introduced a motion Thursday to unseal the Loudoun County Public Schools’ independent review into two sexual assaults that occurred in two different high schools in 2021.
The review looked into how the school system handled the two cases involving two student victims and a suspect, who was also an LCPS student.
In February, a majority on the Loudoun County School Board voted not to release the report to the public.
If granted, the public would have access to the report which was conducted by Blankingship and Keith for LCPS.
🚨 Happening now: Virginia Attorney General Jason Miyares’s team is introducing a motion to unseal Loudoun County Public Schools’ independent review into how the school system handled two school sexual assaults in 2021. This is the report the Loudoun County School Board refused…
— Nick Minock (@NickMinock) August 10, 2023
This summer, the Loudoun County School Board’s legal team fought in court against the Virginia Attorney General’s efforts to have access to the report under seal. The school board’s attorneys claimed the report was protected under attorney-client privilege.
The Virginia Attorney General has had the opportunity to review the report under seal. Below is the Attorney General’s motion to unseal the report:
COMES NOW the Commonwealth of Virginia, by her attorney for the Commonwealth, Special Counsel to the Attorney General Theophani K. Stamos, and moves this Court pursuant to its discretionary authority under Rule 3A:12(b)(2) of the Rules of the Supreme Court of Virginia to unseal the Blankingship & Keith Report (“Report”) previously produced pursuant to this Court’s order for subpoena duces tecum. In support of the motion, the Commonwealth states as follows:
1. On May 30, 2023, this Court issued an order finding that the Loudoun County School Board (“LCSB”) had failed to prove that the Report was protected from disclosure by the attorney-client privilege or the work product doctrine and subsequently commanding LCSB to produce the Report.
2. The Defendant’s public statements on November 5, 2021 on behalf of Loudoun County Public Schools (“LCPS”) regarding the Report were central to the Court’s holding that the Report was non-privileged:
The court finds that this publication is inconsistent with the claim that the B&K Independent Review Report was intended to be an attorney client confidential communication. Rather the opposite inference is compelled by the plain language of the document. First, the court construes the word “independent” to mean free from control or direction by others. Clients intending to avail themselves of the intimacy of confidential communication do not engage counsel to conduct investigations free from the client’s direction or control. Additionally, the document implies that the public will be kept “up-to-date about the steps we [LCPS] take and the progress we make.” The clear and logical conclusion from this public statement is that, in an effort to quell public concern or anxiety, a private law firm was being hired by the schools to conduct an independent review (as “only one step”), which was part of an overall commitment to improve the schools, and that the public would be kept informed “about the steps … and the progress” made. . . . [LCPS’ publication] also vitiates the notion that the B&K report was sought in preparation for litigation and thus protected by the attorney work product doctrine. Typically, clients do not publicly, or otherwise, announce that they have engaged attorneys to review their case “independently” or with a view to sharing the progress associated with such a retainer as one of many “steps” about which the public will be kept informed.
May 30, 2023 Order at 3.
3. The Court further found that LCSB and LCPS’ course of conduct regarding the Report explicitly or implicitly exhibited an intent for the Report to become public:
In short the court concludes that the evidence produced in this hearing establishes that the [LCSB’s] vote of 2/14/23 was nothing more than a vote to not release something they failed to establish as an attorney client communication in the first place. The attempt to assert privilege over a year after the creation of a report that was either expressly or by implication going to be shared with the public, was a futile act.
Id. at 5.
4. The Court further found that LCSB’s internal deliberations regarding the Report at three separate closed meetings likely violated the Freedom of Information Act. Id. at 2–4.
5. After the Court released its findings that LCSB not only intended for the Report to become public, but further violated the public’s right to notice of its deliberations regarding the Report, the Defendant made a public statement on May 30, 2023 detailing his “strong belief” that the Report should be made public:
In a statement, Ziegler said he supported the release [of] the internal investigation.
“The time for transparency and healing is long past, and I am perplexed why the LCSB voted on multiple occasions to keep the report secret,” Ziegler said. “As I have maintained, releasing the report was never my decision. As the events unfolded after the report was provided to the LCSB, I came to strongly believe that the Blankenship [sic] & Keith Report should be released to the public.”
Commonwealth’s Exhibit 1 (Megan Cloherty, Judge Orders Loudoun Co. schools turn over investigation into sexual assaults, rape, WTOP, May 30, 2023, available at https://wtop.com/loudoun-county/2023/05/judge-orders-loudoun-co-schools-turn-over-investigation-into-sexual-assaults-rape/ (last accessed June 14, 2023).
6. Unsealing of records produced pursuant to subpoena duces tecum under Rule 3A:12 is governed by Rule 3A:12(b)(2) (emphasis added):
Any subpoenaed writings and objects, regardless of which party sought production of them, must be available for examination and review by all parties and counsel. Subpoenaed writings or objects will be received by the clerk and must be placed under seal and will not be open for examination and review except by the parties and counsel unless otherwise directed by the court. The clerk must adopt procedures to ensure compliance with this subpart of the Rule. Until such time as the subpoenaed materials are admitted into evidence they must remain under seal unless the court orders that some or all of such materials be unsealed.
7. The bolded text grants this Court the discretionary authority to direct the unsealing of subpoenaed records for any “prudent” reason. As the Supreme Court of Virginia recently held: “The unqualified “unless” proviso in Rule 3A:12(b)(2) authorizes a court in its discretion to unseal documents whenever it is prudent to do so.” Daily Press, LLC v. Commonwealth, __ Va. __, 878 S.E.2d 390, 406 (2022).
8. The Commonwealth submits that there are three prudent rationales for the Court to exercise its discretionary authority to unseal the Report.
9. First, the Report contains information provided by many witnesses who testified before the Special Grand Jury and who may be called to testify at the Defendant’s trial. The Commonwealth was prevented from inquiring into these witnesses’ statements in the Report during the Special Grand Jury due to the now-debunked claim of attorney-client privilege. Unsealing the Report will enable the Commonwealth to complete its inquiry into the statements at issue. The Commonwealth also avers that the Report may be necessary for use during the examination of certain trial witnesses.
10. Second, the Defendant “strongly believe[s]” that the Report should be publicly released. As such, this Court should have no concern that the release of the report would unfairly prejudice the Defendant’s right to a fair trial.
11. Finally, the Commonwealth submits that there is a compelling public interest in favor of unsealing the Report.
12. The Commonwealth has prepared a proposed redacted version of the Report for presentation to the Court. The proposed redactions address the privacy of the victim and miscellaneous protected health information.
WHEREFORE, for the reasons stated and on the authorities cited, the Commonwealth moves this Court to unseal the Blankingship & Keith Report previously produced via subpoena duces tecum, and for any other relief deemed appropriate by the Court in its discretion.