Don't just feel smart, be smart

Remember that hotel ad campaign years ago where the man admits that he’s not a surgeon — even though he just completed a successful surgical procedure — but that he did stay at a Holiday Inn Express the night before? The final tagline was, “It won’t make you smarter. But you’ll feel smarter.”

So it is when I hear elected officials use FOIA to justify some action on their part, or inaction on someone else’s part. I know, they weren’t elected because they were FOIA experts, but, bless their hearts, a lot of them may have stayed in a Holiday Inn Express last night.

Take the recent commotion in Augusta County.

Six members of the board of supervisors there are mad at the seventh because he has been making secret recordings of closed meetings for the past two years.

Unexpectedly adding to its agenda during its mid-July meeting, the board voted to censure Scott Seaton and strip him of his committee assignments. The majority of members said they want Seaton to turn over those recordings. Seaton said he would do so only if required to by a judge.

And that’s when the FOIA experts arrived.

Just to be clear: I have NO idea what the recordings are supposed to have been about. I have no idea what the politics — partisan or otherwise — are of this board. I have not met or talked to anyone on this board. I do pass through Augusta County on my way to my sister’s home in Highland County, but I live on the other side of the state. This is just me, who really is something of an expert on FOIA, armchair quarterbacking what I’ve read in multiple news and opinion sources (Augusta Free Press, News Leader, News-Virginian, Bearing Drift) and the county’s website.

Anyway, the board adopted a resolution last night that is SORT OF like a FOIA request but a request that appears based on its assertion that the recordings “belong in the possession, custody, and control of the County and not an individual board member.”

Meanwhile, Seaton claims that the recordings “are my notes of the closed meetings for my use alone.” He goes on to say that he believes the recordings should be made public, but that “the board refuses to release them to the public.”

The definition of “public records” includes those records that are “prepared or owned by, or in the possession of a public body or its officers, employees, or agents in the transaction of public business” (emphasis added), but that is very different from saying that records in the possession of an individual somehow confer a “right” on behalf of the county to possess or control all of those records. Meanwhile, Seaton seems confused about who can release public records.

FOIA applies to public records in the possession of both “public bodies” and “officers, employees or agents.” It applies whether those records reside on government-owned devices and accounts or whether they reside on personal devices and accounts IF THEY ARE ABOUT THE TRANSACTION OF BUSINESS.

A report written about a government project by a government employee is just as much a public record whether the employee was in her office using a government computer as it is if she were sitting at home using her own pencils and paper to write it longhand or sitting in an airport waiting room using her own laptop and writing a draft on her own word processing program.

They’re all public records. The difference between them is that FOIA doesn’t say that the government employer must have custody and control over the report that still lives on the employee’s laptop. It says only that if someone asks for that report through FOIA, the employee has a duty to turn it over to be passed on in response.

Well, not quite. FOIA only says that the requester is entitled to that report (but for exemptions), whether the employee herself sends it directly to the requester or whether the employee forwards it to someone else within the government to pass on.

So yes, the county board can make a FOIA request for the recordings. They have FOIA rights like everyone else does. They can ask Seaton directly or they can file their request with, say, the FOIA officer, the county administrator or maybe the county attorney. If they do the latter, one of those folks would ask Seaton for the records, and Seaton should turn them over, not because the county has a right to possess and control the records, but because the county has a right to access public records that is the same as any citizen’s or reporter’s right to access public records through FOIA.

(If the board members truly mean that the county has the right to possess and control all public records, I hope they are prepared to turn over all of their own texts, emails, drafts and the like that are currently on their own accounts and devices. It’s better that way from a records management standpoint for sure, but practically speaking, we all know that’s not happening. Not in Augusta County, not anywhere.)

Meanwhile, Seaton can turn over the recordings any time he wants! He doesn’t need a FOIA request directed at him. He doesn’t need the county’s FOIA officer asking for them in response to a FOIA request from the board, a citizen or a reporter. His hands are not tied. If he’s asked for them in order to respond to a FOIA request, he can disclose them himself, or he can forward them to the powers that be.

FOIA frequently gets used as both shield and sword when it comes to politics. Though I discourage that, I know the practice will go on. I can only ask that when it does, folks should do more than just stay at a Holiday Inn Express.

Originally posted on VCOG's Substack Newsletter.