FOIA losing in all three branches

An abbreviated version of this piece appeared in the Richmond Times-Dispatch on Sept. 22, the Tidewater News on Sept. 23, the Free Lance-Star on Sept. 27 and The Roanoke Times on Sept. 27.

This has been a long time coming. I haven’t wanted to write this column because I am a fairly optimistic person and because I try to look for the good in things. I’m no pollyanna, but when voicing my opinion, even forcefully, I try to give credit where credit is due.

But today, I’m not feeling particularly charitable. Today I am bereft. Today I see little to be optimistic about.

In his analysis of the Virginia Supreme Court’s ruling Thursday in Department of Corrections v. Surovell, appellate litigation guru Steven Emmert said he had a “dim sense of a tide turning in Virginia’s FOIA jurisprudence,” away from the right of access and towards the government’s asserted interest.

With all due respect to Mr. Emmert, looking at the court’s rulings over the past several years, the turning of the tide is clear. And it’s not just the court’s opinions: in every branch of state government, and at the highest levels of local governments we are witnessing a flood of actions taken at the expense of the public’s right to know.

Today I feel that we are losing Virginia.

The Surovell opinion is the straw that has so damaged my spirit today. Without even referring to the general duty to redact exempt portions of non-exempt records, which is explicitly set forth in 2.2-3704(B), the court held there was no duty to redact under a particular exemption because the exemption did not contain two specific phrases: “to the extent” and “portions of.” If future Supreme Court justices and the lower courts look to this ruling for help interpreting other 100+ exemptions, all but four of them would meet the court’s test for a duty to redact (i.e., only four exemptions in all over FOIA 100+ records exemptions contain both phrases).

But there is more. Much much more.

• The Supreme Court of Virginia’s administrative arm refuses to disclose a database of court case information that it (a) used to give out, and (b) maintains a publicly accessible case-by-case search system on its website.

• The governor’s office ordered an investigation on the confrontation between ABC agents and a UVA student that left the latter bloodied, then refused to release it by misstating the law by saying FOIA prohibits its release. Then the administration said a state agency’s policy statement overrides FOIA. Another report is being withheld as the governor’s working papers even though it has been distributed to several other people outside the reach of the exemption.

• According to a report prepared by a group of volunteers using publicly accessible bills, of all the bills defeated in the House of Delegates during the 2015 session, 76% were disposed of either without a recorded vote or without even being considered by a committee or subcommittee.

• The Attorney General’s office quoted a price tag of more than $40,000 for an admittedly broad request, but primarily based on the fact that the agency has no centralized way of searching electronic records.

• With the lobbying help of the telecommunications industry and public utilities, the State Corporation Commission successfully beat back efforts to place it under FOIA.

• The Supreme Court of Virginia prompted the above by ruling the SCC was a separate, independent agency in Virginia government, constitutionally created, and beyond the reach of FOIA, procurement and a host of other good-government laws. Since that decision, the court has also ruled that the rapid-fire exchange of emails between members of an elected board is not a meeting; that judges can, on their own, without taking arguments, close courtrooms to cameras; that university researcher’s “proprietary records” include those that threaten not only financial competitive harm, but harm to faculty recruitment, retention and expectations of privacy; and that said a suicide note could be considered a criminal investigative file that does not have to be disclosed and can be withheld even after the investigation is closed.

And no, of course, it’s not just state offices.

• Many clerks of court are refusing to disclose the data that populates the aforementioned Supreme Court database, even though many others have, by making a variety of arguments: (1) some want the requesters of this data to go through the clerk’s statute, not FOIA;  (2) some don’t want to give it to newspapers because newspapers will use it to make money; and (3) some claim the clerk’s office isn’t subject to FOIA at all, despite clear language in FOIA that they are.

• In just the last few months, I’ve also seen a member of an elected board say the board met in closed session “to get our heads together”; an agricultural board that went for years — years — without taking minutes; citizens told they cannot record public meetings; and numerous board members claim they are prohibited by law from speaking publicly about what was said in a closed meeting.

• I’ve seen the federal FOIA exemption for the president’s executive privilege used to justify withholding a mayor’s records; a police department refuse to send records to a Gmail account and another department claiming it doesn’t use email to send any records; and I was charged $16.98 for three one-page fire inspection reports created just two weeks earlier.

Meanwhile, courts and government officials ignore the thoughtful, well-reasoned and well-informed opinions of the Virginia Freedom of Information Advisory Council. And members of the council’s subcommittees reviewing FOIA’s exemption as part of a three-year study have shown little appetite for vigorous examination or challenge to the status quo.

Let me acknowledge that it is the bad apples in the bunch that bring down the hard working, honest and diligent government employees and public servants out there. Unfortunately for them, the bad apples are frequently the ones in the highest levels of authority. They set the tone, they set the precedent.

When the governor’s office says FOIA prohibits release of a record (FOIA’s exemptions are discretionary, not mandatory), other agencies or political subdivisions may be emboldened to misstate their duty to disclose. When the General Assembly doesn’t record votes, a school board may pick up the practice. When the courts say they aren’t even the custodian of a database that is literally in their possession, a city may decide that its salary database is off limits, too.

This has to stop. We the people — the citizens, the media, all the good guys (and gals) in government — we have to make our voices heard that we cannot continue down this increasingly slippery and sullied slope. This is our government. This is our right to know about and participate in our government.

We have to speak out, we have to join with others, we have to be willing to stand up against those in our political party, or our colleagues, friends or our neighbors when they act in a way that is disdainful of the public. We have to participate in meetings and studies (like the FOIA Council review). We have to acknowledge that some things are broken.

This is it, folks. I really believe this is a critical juncture. On the one side is a desire to be better and to continually improve. On the other side is an acceptance that we do not deserve to be informed of what our government does in our name.

I know where I stand. I cannot lose Virginia.

What about you?