And another thing...

 

And another thing…

I’ve been bereft of grand pronouncements, deep thoughts or piercing analysis this month. Hence, no newsletters of late. But of course, I’m still watching the news, reading the papers and answering the questions that come my way from citizens, press and government officials, and I guess since I’m also feeling old and cranky today, I’m critiquing a few stories from the comfort of my trusty rocking chair.

You might think I’d shake my fist about the criminal investigative records exemption being used to shield a tree inspection report. You’d think I’d be yelling, “Get off my lawn!” to the police department that denied a daughter records about an incident on her father’s street because — though she lived in the same locality — she didn’t live in the same neighborhood where the incident occurred. But no. Instead I’m going to start with the report on the awful shootings at UVA last year that killed three Cavalier football players.

At the Board of Visitors meeting right after the shooting, the school president informed the board that he’d asked the AG to engage a firm to do an “external review” of the shooting. The AG hired two firms to do so and they delivered the report last week. Only, the report’s not being released yet. According to UVA, the report has to be reviewed for “factual accuracy.” And according to someone at the AG’s office, it’s not being released by them through FOIA because it’s protected by the attorney-client exemption.

First, exactly what “factual accuracies” (other than typos and name spellings) does the university need to review, given that the whole point of an external investigation is to, well, establish a factually accurate product? It is no longer independent if someone is batting clean-up for factual accuracy. Fairly or not, such a statement immediately raises suspicions of altering, adding or deleting information to make it more (?) factually accurate.

Secondly, what really grinds my gears about this response is when I remember how aggressively (and rightly) the AG’s office went after a similar outside review of a school incident that was being withheld under the same (and several other) exemptions. You remember Loudoun County, right? How the school board asked for an “independent” review of the two sexual assaults by the same student at two different schools, and once they got the report, they withheld it for a year and a half? It was attorney-client. No, it was student privacy. No, it would raise more questions than it would answer. No, it was the fourth moon of Jupiter in the House of Aires.

The AG pressed and pressed and eventually got a judge to agree with a previous ruling. In his motion to compel disclosure, the AG cited a earlier judge’s pronouncement that, “Clients intending to avail themselves of the intimacy of confidential communication do not engage counsel to conduct investigations free from the client's direction or control.” That sounds right to me and the AG should follow the same logic here.

Then there was a story this week out of Arkansas (I know, second Arkansas mention this fall) where the state police are complaining about being overrun by requests for police dash- and body-cam footage. The culprits, according to the ASP, are “content creators,” who get the video and then post it online where they make money based on the number of views. The story quotes one of these content creators who says he wants to show both sides of the encounters — from tense situations to changing a stranded motorist’s tire — as real people.

What stuck in my craw about this one? Two things. One was the pearl-clutching over someone making money off public information. I’ll always remember Maria Everett — the first director of the FOIA Council — saying that when she got a request for information she knew would be used commercially, it made her feel “icky.” But then, she said, she went outside and confirmed that the Stars & Stripes were still flying from the flagpole, and in our capitalist economy, kudos to them for creating a product consumers were willing to pay for. Surely the ASP knows that public records are used All. The. Time. as the basis for commercial products, from Lexis Nexis to weather apps, real estate services and mailers to boat owners offering insurance.

The other thing was the comment that was, I think, supposed to make this a slam-dunk for why this was so troubling for the ASP: “We are at a point now that we are beginning to add staff so that we can handle all the requests coming in in a timely manner."¹ To which I say, hooray!!

FOIA is frequently an afterthought. Budgets are tight, I get it, but FOIA officers are frequently saddled with the job as an add-on. They are wearing multiple hats. They don’t have budgets that will support products and services that will make FOIA processing easier. They have just enough to get by to fill the requests, but don’t have any spare time or resources to improve their own efficiency or the public’s easy access.

Next on my list: I got a gander at an email sent to a committee reviewing a proposed publicly funded renovation project that urged committee members to manually share their notes on bidders to be incorporated into an official recommendation. Don’t email the notes, the message read, because “email is FOIA(able).” And rest assured, the message continued, “[we] will destroy the notes” when the recommendation is complete.

Not too long ago, extra penalties were added to FOIA for instances where records were destroyed prior to their retention period with the intent to avoid FOIA. I don’t know retention schedules well enough to know what the applicable retention period would be or whether it requires confidential or non-confidential destruction (not to mention an RM-3 filing), but to me, this looks like the type of statement that reveals an intent to avoid a FOIA request.

Now, speaking of retention schedules, and, earlier, about FOIA officers wearing multiple hats, I had the great fortune to spend yesterday at the conference of the Virginia Association of Government Archives & Records Administrators. They are doing a thankless job with few resources and usually minimal support. They want to do a good job. They want to get the work off their desks, for crying out loud, so they can move on to the next task. Time and again I’ll hear from these folks — who are frequently also the FOIA point-people — about how they need the right tools, and they need the authority to do their jobs.

Though their situation is often dire, these people are truly unsung heroes. They are keeping us from drowning in paper. They are preserving our history. They understand the critical role records play both for the government and for the people it serves. They are the bright spot in my otherwise cranky week. And for all of that, I salute them. 

1. I can’t find a FOIA Officer by name or by office on the ASP’s website.