Open Government: Va. FOI Law Thrives, But It Needs Improvements
By FROSTY LANDON
GUEST COLUMNIST, Richmond Times-Dispatch 3.12.06
There’s one of those big construction-site signs on the grounds of the State Capitol these days, announcing the first major restoration and expansion of the Capitol in almost 100 years. Significantly, the sign heralding the $70-million project bears an important footnote. It reads “Owner: the People of Virginia.”
PR or not, those words say loudly and clearly what is sometimes overlooked by government officials (and by citizens who sit out an election): All of us are, in fact, owners of our government. And all of us have a right to demand accessible and accountable government — at the State Capitol, at a city hall, and, most especially, inside the Beltway.
Today marks the start of Sunshine Week, an annual observance co-sponsored by librarians, journalists, the League of Women Voters, and other access activists working to keep government open to its owners.
Open government is good policy. It’s also good politics. Yet there are always some in government who give lip service to strong “sunshine laws,” yet try to keep us in the dark when politically expedient.
Citizens, Press Force Disclosure
When a Chesterfield citizen recently discovered that $18,000 had been spent for the county administrator’s questionable chartered flight, it was the state’s Freedom of Information Act (FOIA) that led to the disclosure. When a Newport News newspaper revealed unscrutinized salary deals at Virginia’s ports, it was FOIA, again, that led to the disclosure.
The FOI law is not perfect. Among its 135-plus discretionary exceptions are some that invite abuse:
* Closed-door discussions wrongly occur when there are vacancies on city councils, school boards, and boards of supervisors;
* Public officials’ résumés are held to be privileged;
* Law enforcement’s investigative reports remain permanently shut down; and
* “Proprietary-record” exceptions (never defined) cover a host of other sins.
These exemptions “grow like Topsy,” added by simple majority vote of state legislators. Once placed in law, many of the exemptions tend to live forever.
Yet these loopholes don’t begin to approach some that exist in other states. Virginia’s policy is clear, even if some FOI exemptions are not.
As the FOIA’s preamble states, “The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government.”
When the FOIA is invoked, exemptions must be narrowly applied. Records must be produced within five days, with no questions asked about purpose or motive. If a seven-day extension is needed for compliance, it can be invoked just once; only a court can sanction greater delay.
If search and copying fees are imposed, they must be reasonable, limited to actual cost. If illegal discussions occur behind a closed door, an elected official is duty-bound to reveal the offense — although some will lie unless and until such sessions are recorded for possible judicial review.
To foster FOIA compliance, the General Assembly six years ago created a 12-member Freedom of Information Advisory Council. Based in the legislature, its two-lawyer office provides authoritative and impartial rulings, ongoing training, and a process for reviewing problems at least on occasion.
Most recently, the FOIA Council helped craft a long-needed tightening of disclosure rules for so-called public-private partnerships. These “3P” alternatives to traditional procurement projects are increasingly used to cut red tape, encourage private-sector innovation, and, theoretically, cut construction costs. Unfortunately these deals got hammered out in secret. But thanks to a FOIA Council study, unanimous legislative approval, and the Governor’s expected signature, that secrecy should lessen after July 1.
Assembly Actions
That was not the only significant open-government action by the 2006 General Assembly. Again acting in response to an obvious abuse, the Assembly closed the so-called 527s loophole that permitted millions of dollars in out-of-state political money to bankroll Virginia elections with no pre-election disclosure of donors’ names. Again assuming the Governor’s signature, that abuse will not recur — although one should not underestimate the ability of a politician to find new ways to circumvent disclosure rules.
Alas, the 2006 House of Delegates fell into that very trap, all in the name of government efficiency. (I leave it to others to say if that’s an oxymoron.) What was not defensible was the failure of the House Republican caucus to require recorded votes in its newly empowered subcommittees.
Until these key votes are routinely recorded, owners of government cannot know if in fact they’re a “beneficiary of any action taken at any level of government.”
Frosty Landon is executive director of the Virginia Coalition for Open Government, which he helped organize a decade ago.