My husband likes to tell the story of him as a 6-year-old scamp (his mom would say hellion) standing amongst a group of older kids, watching them scamper up and down a utility pole courtesy of climbing spikes some workers left behind. Mom-of-Scamp sees the kids through the window and marches out to shoo everyone away. For good measure, she points at Scamp and says, “And don’t even THINK about touching that pole.”
As soon as her back is turned, Scamp stays where he is, but carefully stretches his leg out, strains with his toes just enough to make foot-to-pole contact. Not a second later, MOS has wheeled around for one last look and there’s the boy, touching the very pole she told him not to.
I know his woman. I couldn’t ask for a better mother-in-law. But I’d rather walk through slugs than be on her bad side. Things didn’t end well that day for the hubs.
The story isn’t really about my spouse’s mother, though. It’s about my spouse, and how he spent much of his childhood essentially daring his mom and dad. He pushed the envelope, got chalk on his shoes, skated on thin ice. However you want to put it, he always wanted to know just how far he could go before his parents took action. Sure, all kids test their limits, but some kids, my husband chief among them, turned it into a mission.
Sadly, there are too many governmental bodies out there that take the same approach when it comes to FOIA. They may play fast and loose with the procedures for records, claim inapplicable exemptions or fail to give the public notice of their meetings. And oftentimes, these aren’t miscues or misunderstandings. They are done to drag things out, obscure or otherwise avoid the transparency FOIA seeks to provide.
They are the Scamps of the local and state government world, pushing the interpretive envelope to see just how much they can get away with, safe in the knowledge that there’s no vigilant mother to call them on it.
I’m not a fan of litigation. And yet, litigation is the ONLY way to compel compliance with FOIA in Virginia and most every other state in the country. You have to go to court to assert your rights.
Thirty years ago, we could count on the news media to push back. But as the industry shrunk, particularly for print media, fewer and fewer outlets had the resources to keep up a steady stream of compliance lawsuits.
Into that vacuum stepped public bodies that realized that absent challenges in court and possible legal repercussions, there was no real disincentive to push the envelope.
Virginia is better than a lot of states in that it has set up an easy way for ordinary citizens and reporters to get a judge’s ruling. Individuals can file a “DC 495” form in the general district court where they live. As I noted in my recent post “FOIA enforcement is different,” the usual rules for court asking for a writ of mandamus (an order telling the government to do something, like follow FOIA records procedures or disclose records) or an injunction (an order telling the government to stop doing what they’ve been doing with regard to meetings) have been relaxed in recognition that citizens without legal training or experience can nonetheless enforce their rights.
My first several years as director of VCOG, I didn’t want to encourage litigation. Again, when the media landscape was more robust, there was often public opprobrium through the local newspaper or a well-placed editorial to nudge some recalitrant government actors to do the right thing.
Now, the media landscape has fragmented to the point that it is difficult to find one place a community can go to vent its collective outrage over withheld documents or secretive meetings. There are fewer media pursuing cases, and fewer individuals who have the time and wherewithal to fight back.
And, banking on that environment, too many governmental bodies simply shrug off FOIA’s procedures or distort FOIA’s exemptions, essentially daring someone to take them to court.
I still don’t actively encourage litigation — my initial advice is always to try to work it out and/or exert public pressure — but I’ve seen a steady increase in calls and email requests asking me how to initiate a case or asking me for names of lawyers who might take a FOIA case. People are frustrated by huge FOIA bills, by meetings held without proper notice, by exemptions that don’t even come close to covering the requested records.
In the end, the question isn’t whether the Scamps of government will keep testing the limits of FOIA — they will. The real question is whether enough people will turn around, like my mother-in-law did that day, and call them on it. FOIA was never meant to be a game of “how far can I go before someone notices?” It was written to give citizens the tools to hold their government accountable.
If public officials are going to keep stretching their toes toward the pole, then citizens — armed with knowledge, persistence, and, yes, sometimes a lawsuit — need to be ready to stop them.
Because if no one’s watching, they’ll keep climbing.