Of salary & critical infrastructure

UPDATE: All three bills noted below were approved Feb. 8 by the committee. In the process, SB 552, which started off dealing just with law enforcement, has now been changed to prohibit the release of names in connection with salary for all government employees. 

FURTHER UPDATE: By the time it passed the House, SB 552 had again been amended to remove the reference to all employees. The bill now solely refers to the names/training records of law enforcement.

There are several FOIA bills on the docket for Senate General Laws today (it convenes 45 minutes after the adjournment of the Senate session). Here are three that we strongly oppose. 

SB 202

This bill does two things with regard to disclosure of public employee salary information.

(1) Current law requires disclosure of all salaries (including names) above $10,000. This bill would raise that minimum amount of twice the federal minimum wage, which today is just over $30,000.

and

(2) It would prohibit making a “publicly available database” of salary and name for ANY level of government employee.

The state agency of human resource management says the changes are needed to combat possible ID theft. They theorize that the reason hackers were able to file fraudulent tax returns in the name of 1,500 state employees is because they were able to match up information obtained from other data breaches (Anthem, Target, Sony, Michaels, etc., etc.) with salary information obtained from the Richmond Times-Dispatch’s online salary database.

We oppose both parts of this bill.

Ethics laws are being tightened to deal with conflicts of interest and the link between gifts and officials and their families. The same concern is at play in the salary arena. We need to be able to ensure that government employees or officials are not hiring family and friends to do made-up jobs or at pay rates far higher than is appropriate. The $30,000 threshold should not be changed. Nepotism and corruption are crimes. Transparency is one way to avoid even the appearance of impropriety.

(Please note that it is often government employees who seek this information. They want a check on fair compensation and they need it when considering whether moving to a different jurisdiction for the same work is in their best interest.)

On the second part, the state should not be in the business of telling private individuals — newspapers, advocacy groups, individuals or any other business that creates a “publicly available database” —  what they can and cannot publish.

The ban also goes in precisely the opposition direction of states who are proactively publishing salary databases (with names!) online, including Ohio, Florida, Kentucky, D.C., and possibly others (I’ve not done a comprehensive survey).

SB 552

This bill also deals with salary. It would exempt from disclosure any information about salary — including name, position and job classification — for anyone in law enforcement: “(i) employees of state or local police departments or sheriff's offices who are responsible for the prevention and detection of crime and the enforcement of the penal, traffic, or highway laws of the Commonwealth; (ii) special agents of the Department of Alcoholic Beverage Control; (iii) officers of the Virginia Marine Police; (iv) conservation police officers who are full-time sworn members of the enforcement division of the Department of Game and Inland Fisheries; (v) investigators who are full-time sworn members of the security division of the Virginia Lottery; (vi) conservation officers of the Department of Conservation and Recreation commissioned pursuant to § 10.1-115; (vii) full-time sworn members of the enforcement division of the Department of Motor Vehicles appointed pursuant to § 46.2-217; or (viii) animal protection police officers employed under § 15.2-632.” An expected amendment will add fire marshals and maybe others.

We oppose this bill.

Proponents say they worry for officer safety, including (as the patron stated) undercover officers and newly minted officers who might become undercover officers. No one wants to out undercover officers, which is why many (most? all?) do not use their real name in their line of work — too easy to Google someone’s past separate and apart from his/her law enforcement career. And the overwhelming majority of law enforcement (especially with this long list) do not operate undercover. 

So what this bill does is eliminate the ability of the public to see how departments are organized, whether the number of employed persons falls within their spending and safety priorities (too few, too many), or whether family or friends are on the payroll for made-up jobs. It’s like a secret police force. A police force the public must pay for, but a police force the public is not entitled to look at with any scrutiny.

SB 645

This bill expands the current exemption for critical infrastructure records and adds new definitions for the terms "critical infrastructure," "government infrastructure," "interdependency," and "security information."

It also adds a new section to FOIA that sets up a system that would allow “the entity or person that is the subject of the records” to object to the government’s decision to release records under this exemption in his discretion (that is, FOIA says the records can be withheld by the custodian but don’t have to be; under this proposal, if the custodian decides to release the records even though they could be withheld, then the person or entity the records relate to can protest). So, if the records have to do with “critical infrastructure” that is maintained by a private company, that company can ask the government not to release the records.

It’s an elaborate system that takes upwards of 21 days of back and forth and with court as a last (but anticipated) resort.

The system includes a balancing test, one that asks whether “the risk to public safety from release of the records substantially outweighs the public's interest in obtaining access to the information.”

Virginia has consistently rejected these balancing tests, which essentially require courts and government to determine who is making a the request and why he/she wants the records. When the government picks and chooses among requesters and preferred uses of records, the stage is set for selective use and retaliation of disfavored requesters and uses.

The whole protest-and-review mechanism would represent a huge policy shift in Virginia’s FOIA. At a minimum, such a big shift should be studied by the FOIA Council before it is put into law, but we oppose the bill as is.