No way to run a council

Here’s what the FOIA Council did this year.1

It met twice in 2023. The first time on July 27, then again on Dec. 14. It’s supposed to meet quarterly, so while it doesn’t usually meet during the legislative session, that still means the council let two quarters pass before meeting for the first time.

At the 53-minute-long July 27th meeting, the council was asked by advocates to provide some sort of study or guidance to deal with three recent Supreme Court of Virginia cases. The council obliged — sort of. They approved a “Meetings Issues” subcommittee to study issues at the behest of government attorneys on two cases: Gloss v. Wheeler and Berry v. Fairfax County Board of Supervisors.

On the other hand, they decided to hold off on my request to issue guidance on or have a study of the way that public bodies are routinely ignoring the guardrails the Supreme Court established on the use of the personnel records exemption set out in Hawkins v. Town of South Hill.

They established an “HB 1880” subcommittee to study a bill referred to it by the General Assembly — the bill VCOG asked for about ensuring local governments can’t hide the amounts they pay to settle claims made against them.

The council also directed the “Electronic Meetings” subcommittee to study a proposal about allowing disabled individuals to count towards a public body quorum if they have to participate remotely.

But, for good measure, because a letter-writing campaign had flooded the council with nearly identical messages, the council directed the same subcommittee to study a bill that was defeated in the General Assembly (a first, to my knowledge, that a defeated bill was nonetheless studied) that wants to expand the opportunities for public bodies to meet 100% by Zoom more and more often.

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OK, so that was July. It takes more than a month — Sept. 5 and 6 — for the Meetings Issues and HB 1880 subcommittees to meet. Both met a second time on Nov. 22. The Electronic Meetings subcommittee met once, on Nov. 9.

Starting with that Nov. 9 meeting, where two of three subcommittee members were there, the committee said “yes” to letting disabled individuals count towards a quorum when participating remotely, but split on whether to expand all-virtual meetings and on an idea floated by a member of the public to also allow caregivers of disabled individuals, if serving on a public body, to count towards a quorum when participating remotely. Since they couldn’t agree, the two subcommittee members said they’d ask the full council to decide.

The Meetings Issues subcommittee couldn’t quite agree on which direction to take, so they forwarded multiple drafts and multiple proposals on multiple issues to the full council to work out in December, less than a month before the start of the General Assembly session.

The HB1880 subcommittee decided against recommending any bill on settlement amounts.

Unlike in the first decade of the council2, public participation was mostly of the one-off variety. The subcommittee members talk, the public comments, the subcommittee members talk some more and then vote. I was the beneficiary of some indulgence at the Electronic Meetings meeting in that they let me speak up on a few matters out of turn, so to speak. Others weren’t granted that latitude.

In the old days (yes, nostalgia runs deep), we would literally sit around a conference table and talk about policy, about our concerns, about our suggestions, and then we would collectively parse the language to come up with a product that addressed as many of those policies, concerns and suggestions as possible. *exhales wistful sigh*

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Anyway, at the council’s second and final meeting in December, they were in the being asked to consider the subcommittees’ recommendations, which were few, and untangle the non-recommendations, which were many. For those of you who have sat in the House Courts of Justice committee during the legislative session, you’ll understand what I mean when I say that this council meeting was like being in Courts. They were wordsmithing up there on the dais, with minimal public input, even though members were talking about major policy shifts and sometimes making glaring misstatements of the law.

The conversation was dominated by four of the 10 members in attendance: three local government attorneys and one former member of a board of supervisors.

Two other members spoke up occasionally. The remaining four were quiet. Three members did not attend. And the council is down two legislative appointees from the House.

The council approved a few recommendations for future legislation and honestly, I can’t quite figure out what some of those proposals will look like since the members were, as I said, wordsmithing on the dais and taking parts from one draft, this section from another draft, keeping this idea for a separate bill, etc.

But let’s recap what the council approved and did not approve.

In the category of what will help make public meetings for members of the public body easier:

• An amnesty for COVID-era decisions made by electronic means between March 2020 and July 1, 2021, provided they followed all of FOIA’s other rules.

• A clarification on when public officials can go to informational meetings, political party meetings, meetings of other public bodies and other public fora without triggering FOIA’s meeting rules, plus a definition of “public business.” This last point was added without any consideration of the impact it might have on the half-dozen other places the term is used elsewhere in FOIA.

• Letting those with disabilities and caregivers of those with disabilities count towards a quorum when they are participating remotely.

In the category of what will help the public:

Because, remember: they did not take up my suggestion to look at the use of the personnel records exemption, and they did not recommend the bill on hiding settlement amounts.

Now, to be fair, VCOG did not oppose some of the pro-government measures. VCOG was actively involved in trying to come up with solutions that dealt with the real fall-out from the Supreme Court cases but that also didn’t go past that. As we have done since our founding in 1996, we work collaboratively where we can and we hold our line where we must.

So this might sound like sour grapes — I didn’t win on many of these issues. But, believe me, I’ve been on the losing end of FOIA Council and legislative battles way more than I’d like to admit. I am intimately familiar with losing the policy argument, losing the vote.

That’s not it. The problem here is a FOIA Council heavily weighted to state and local government trying to tackle weighty issues of public policy and judicial interpretation basically on their own in short snippets of conversation in a compressed period of time.

The council has got to get back to its original way of operating, which was to work on compromise language. Go back to the council’s annual reports and you’ll see unanimous recommendations. You’ll see endorsements from entities that often conflict. You’ll see back and forth and agreed-upon language. Amendments added to alleviate concerns. Language tightened up right there on the spot, not with a nod to staff to “bring us back something.”

The council needs to return to a full complement of members, and not all from state and local government or law firms that represent state and local government. How about a genealogist? A reporter? An academic? An advocate? John or Jane Q. Public?

The council needs to meet quarterly, at a minimum. Members need to show up to full council meetings and for the meetings of the subcommittees they’re on. Subcommittees need to start early, meet often, iron out the nubbly details before handing recommendations to the full council. Subcommittees need to operate more workgroups or task forces. Because what you see now is the council acting more like a legislative committee. It’s about who can get enough votes from the council members who show up.

Whipping votes and counting noses may be well and good for the General Assembly, but for a council whose job it is “to encourage and facilitate compliance with the Freedom of Information Act,” that’s no way to run a hamburger stand.

1

This is about the council as a body, not about the day-to-day work that the council’s director and senior attorney do answering calls, writing opinions, doing training sessions, etc.

2

VCOG was actively involved in drawing up the legislation to establish the FOIA Council in the 2000 legislature. Our founding director had the directors of similar offices in New York, Connecticut and Indiana come and talk to a legislative study that was rewriting FOIA to tell them about their experiences.