Several stories highlight the gulf between the letter and the sprit of FOIA
VCOG’s daily email newsletter was chock full of stories today that begged for comment.
If you’re not subscribed to the newsletter, you can sign up here, but in a nutshell, most every weekday morning around 9 a.m., I send out a missive with a handful of recent Virginia news stories (an average of ~ 4 per day) about FOIA, access, transparency and sometimes the adjacent issues of First Amendment, campaign finance disclosure, ethics, historical records, etc. I’ll include an occasional story about federal FOIA or an open records/meetings story from another state. I also include columns (like this one) and editorials.
It’s usually just a reprint of several sentences or paragraphs from the article, with a link to the story, and occasionally I add a comment of explanation. I might also include VCOG-related news, like the fact that we’re currently seeking nominations for our annual open government awards.
You can nominate a FOIA hero here
Anyway, today’s newsletter punched above its weight, with nine items. And not just that, but those nine items raised some really interesting points or highlighted some recent trends.
Let’s review.
Google strives to keep data center water use secret after judge orders records released – Roanoke Rambler
Google wants to build a data center in Botetourt County. Another news source reported that the county entered into an agreement with the local water authority whereby the authority would provide millions of gallons of water each day to cool the center’s computing equipment. When the founder of Roanoke Rambler, Henri Gendreau, asked the water authority for a copy of the agreement, the authority redacted the amount of water at stake, saying it was Google’s proprietary information. A Roanoke Circuit Court judge felt differently, said it wasn’t proprietary information and ordered the authority to release the records. The story says that the authority is going to appeal because Google, not the authority, but Google, strongly believed the information should be redacted as proprietary.
Again, it’s not that the water authority necessarily thinks the information should be redacted, but Google thinks it should. So, the government is not protecting its own interests, as we usually see in FOIA transactions. It is trying to protect a business’s interests. A business that wants to impose a significant burden on the water system that serves county residents and businesses.
The judge got it. In fact, she got it so well, and said it so perfectly, that there’s no need for any further comment from me.
The public has an overwhelming interest in the management of [water] and that interest is certainly more important in the beginning stages of a project than after the project has been finalized. For the public to be given information on water usuage when the ink is dry on the deal is useless. … There is no question that a data center in Botetourt County will provide an economic benefit to the community, and well beyond. However, the citizens who want to examine all aspects of the proposal before the project is finalized seek to participate exactly as FOIA envisions. (emphasis mine)
A lawyer for the city said he didn’t ask for the sealing of a court document – The Richmonder
In the ongoing litigation between Richmond’s former FOIA officer and the city – where the officer says she was fired for refusing to go along with her boss’s direction to take certain steps in response to FOIA requests that were not supported by FOIA’s rules and procedures – we get a story where FOIA does more of what it is envisioned to do: produce records that either confirm or contradict what is said publicly.
Government likes to say it is transparent when it proactively discloses something. More power to them!
But, transparency is not just about what the government decides to show us. True transparency is when we, the people, get to decide what we want the government to show us.
Granted, this was an attorney for the government, who actually works for a private firm, but he told Graham Moomaw of The Richmonder that he had not asked a judge to seal a record filed by the FOIA officer’s attorney. That attorney made a motion and attached a report detailing how the city searched for certain electronic records connected to the case. (Fans of the movie Spotlight will remember the scene about file attachments.)
The city’s attorney said to Graham,
[The] city’s legal team did not ask Judge Cardwell to seal the spoliation filing or any of its contents or take any action whatsoever. She did that sua sponte (on her own)
But an email the city’s attorney sent to the judge’s clerk tells a different story.
[We] respectfully request that the Clerk’s Office immediately seal the filing containing this attachment to prevent further dissemination, pending the Court’s direction.
When asked about the discrepancy, the city’s attorney said, well, he didn’t ask the judge; he asked the clerk. But as the judge said, “The clerk has no authority to seal the public records.” In other words, the request technically may have been made of the clerk’s office, but as any litigator knows, you go through the clerk to communicate with the judge. Ex parte communications and whatnot.
The public should never have to blindly trust what the government is telling them. As the Russian proverb goes, “doveryai, no proveryai.” Trust, but verify. That’s what FOIA envisions.
State Sen. Creigh Deeds received his FOIA requests from U.Va. – here’s what we learned – The Cavalier Daily
This is about the resignation of Jim Ryan as president of the University of Virginia. Senator Creigh Deeds filed a FOIA request for email communications related to his departure, and this article is about what those records say and reveal.
This is what interests me. Deeds submitted his FOIA request to UVA on Sept. 18. Earlier reporting indicated he had been trying to get answers through other channels first, but filed the FOIA request because he was unsatisfied with the response.
Ordinarily, a response would be due within five working days (Sept. 25), and the university likely invoked the extension of an additional seven working days, which would have meant a reply was due by Oct. 6. The story notes that Deeds received the records on Oct. 29. We also know from the Inside Higher Ed story that he paid $4,500 for them.
And then, there’s this:
Deeds provided these documents to The Cavalier Daily, which has submitted 25 FOIA requests of its own but has not received any records since July 1.
What that tells us is that UVA is unilaterally ignoring FOIA response deadlines. The university could have worked something out with Deeds to give them the extra time between the 6th and the 29th, but it sure doesn’t sound like The Cavalier Daily has any such agreement.
Is the difference in response related to the underlying request? Or, does anyone else wonder if Deeds got the records because he is, well, Deeds? An important person who has some sway over state funding for UVA. Versus The Cavalier Daily? Are they just students who can rile up other students but not much else? What justifies the different treatment?
What else this tells us is that UVA is OK with charging $4,500 for public records, records the public has essentially already paid for. FOIA allows but does not require charges. And Deeds’ request could have been far-ranging. But what rankles here is knowing that while Deeds, as a successful attorney, can likely afford it, while The Cavalier Daily likely cannot. An interested faculty member? A curious alumna? Joe Shmoe on the street? Probably not.
High charges for records requested under FOIA make public records accessible only to the well-off. Ordinary Virginians are priced out of exercising a statutorily guaranteed right.
Norfolk’s housing authority board fired its executive director – WHRO + Patrick County administrator resigns – Martinsville Bulletin.
I put these two together because the Patrick County article is, as the headline says, about the administrator’s resignation. The article says, “The printed agenda for the meeting listed five items, including an evaluation of the county administrator.” That means citizens could have looked at that agenda and decided whether the county administrator’s performance was something they were interested in. Maybe they want to comment. Maybe they just want to know what’s going on. So they go to the meeting. Or, maybe they couldn’t care less and so they stay home. But they knew in advance.
Contrast that with the Norfolk story, where:
No reason was given during the vote, which happened after the [Norfolk Redevelopment Housing C]ommission retreated into a closed session to discuss an unspecified personnel issue, according to a recording of the meeting that was posted almost two weeks later….[N]either Simms nor any members of the public appeared to be present at the meeting after the board reconvened to vote on Simms’ termination following the closed session.
Patrick County did it the right way. I would say the NRHC did not. There’s not a prohibition against what they did, but it clearly goes against the policy statement of FOIA: “The affairs of government are not intended to be conducted in an atmosphere of secrecy.”
And it is this lack of prohibition that has prompted VCOG to seek a legislative fix. Last year, Sen. Adam Ebbin carried a bill for us that aimed to stop public bodies from taking final action on items that they add to the agenda during the meeting. The bill passed the Senate unanimously, but a House subcommittee sent it to the FOIA Council for study.
During the FOIA Council process, public bodies (primarily Fairfax and Arlington counties) said they needed more exceptions to the otherwise blanket rule. The bill already included a timing element, so public bodies can respond to emergencies or other matters that are time-sensitive, but these public bodies wanted further leeway to allow various administrative final actions, and they didn’t want the rule to apply to “advisory bodies” at all. The FOIA Council agreed to the former, but rejected the latter when it endorsed a proposal (there were two “no” votes).
The new bill will include another exception, though, which is relevant to what happened here. The public bodies still want to be able to act on newly added items following a properly closed meeting. This firing would still be allowed, even if the agenda bill passes during the upcoming legislative session, because the closed meeting was properly called.
Or was it? I would argue that the notice to go into closed session wasn’t proper if the subject matter was an “unspecified” personnel matter. Patrick County showed that you can identify the person and generally what will be discussed. If public bodies want to retain their right to take surprise actions when they come out of a closed meeting, they need to up their closed meeting motion game.
Warrenton council members pre-planned town manager’s firing, text messages show – Fauquier Now.
There’s nothing earth-shattering in this story about how four members of the town council exchanged messages about the script they would follow in an upcoming meeting and limit pubic discussion about firing the town manager.
We know these discussions, strategies and machinations are how many decisions are made. The apparent instigator of the move defended it as normal.
This “script” is nothing unusual. All town councilmen plan how they want to present their views in front of the council and often work together to present their views. As long as council members comply with open meeting rules, then there is nothing out of order here.”
But it still feels icky. Especially when that same person said that he would write up the script and “sen[d] it to your personal e-mail.” Which he did, from his own personal email address.
Just a reminder to the elected officials out there: FOIA extends to all public records, and public records include messages about public business on personal accounts and devices.
I’m not sure why he felt the need to specify that he was sending it to the personal address, from his personal address, if he didn’t perhaps think that both were outside of FOIA’s reach. I’m thankful that the FOIA officer here knew how to get ahold of these regardless.
Surry County paid finance consultant over $100K without contract – The Smithfield Times
In this story, invoices obtained through FOIA show that Surry County has paid $108,378 to the consulting firm owned by its interim finance director for over 1,000 of her work hours, at $95/hour, but that there’s no contract underlying this agreement.
Not a good look. The article quotes a political science professor as saying the situation “raises some thorny legal questions,” and suggested that “once this job starts getting big…then it might run afoul of the Virginia Public Procurement Act.”
I’m no PPA expert, and I don’t know if he’s wrong or right. It would be nice to get some clarity. But that clarity isn’t coming from the county.
[The county attorney] declined to comment on the legality of compensating an independent contractor without a written contract in place, stating the question is “beyond the scope of FOIA and as you are not my client, I am unable to advise you as to legal requirements for county contracts.”
“You are not my client.” That is correct. The county is the client. But was that really necessary? Couldn’t we have just ended that sentence after the word “FOIA”? If the goal was to create further distance between government and the people (and press) it serves, mission accomplished.
There were two additional articles in today’s newsletter, but they didn’t elevate my blood pressure. Just these seven, all of which contain elements of something that may be legal (let’s just assume it’s ALL legal), but that miss the point of FOIA. They elevate the letter of the law with the spirit, and they miss the public relations opportunity that being open and transparent offers to all who use and apply the law.