How not to be transparent

Yesterday, an informal workgroup of the FOIA Council met to discuss the possibility of putting some of the State Corporation Commission’s records under the rubric of FOIA.

Currently, the SCC stands alone among government agencies in not being subject to FOIA. The courts aren’t subject to FOIA -- that’s a separate branch of government -- and there are special exceptions for the Parole Board, the Crime Commission and family assessment and planning teams. But those entities are limited in reach.

The SCC is a hugely influential government agency. It regulates public utilities (phone, water, gas, electricity companies), it regulates insurance companies, railroads and securities. Businesses operating in Virginia must fill out SCC paperwork.

In short, there isn’t a citizen or business in Virginia who is not affected by the work the State Corporation Commission does.

But in December 2011, the Virginia Supreme Court said that, because the SCC was a constitutionally created agency, then it was different from all other taxpayer-supported agencies and did not have to follow FOIA.

The last time the state’s high court weighed in on FOIA and the constitution, the General Assembly promptly stepped in and passed legislation specifically stating that for records purposes, constitutional officers (treasurers, commonwealth attorneys, sheriffs, clerks of court and commissioners of revenue) are subject to FOIA.

So it was no surprise when Del. Scott Surovell proposed legislation that would do the same thing with the SCC: put them in FOIA instead of outside of it.

The FOIA Council took up a study and got an earful from the SCC and from representatives of regulated industries. Nonetheless, as directed by the full FOIA Council, staff drafted two possible bills. Both sought to distinguish between records related to regulated businesses (not subject to FOIA) and those related to the administration of the agency (would be subject to FOIA). And both contemplated exempting meetings and hearings from the FOIA’s meeting provisions.

Industry representatives balked, worried that FOIA’s presumption of “everything’s open unless specifically exempted,” would inadvertently lead to the release of “harmful” information, favoring, instead, an approach that would specifically spell out what records had to be released (there are currently such provisions throughout the Code of Virginia).

There were some questions about the FOIA Council’s authority to opine on FOIA issues the SCC might face. There were questions about the SCC’s taxing authority and what that meant for tax information. There were questions about Miss Utility. There was worry that other agencies might want special records vs. meetings distinctions. There was explanation about how hearings are advertised and reference to what other states’ corporation commissions do. All of this in reference to the FOIA Council’s proposed drafts.

More than hour into these talks, the SCC revealed that it’s working on its own bill that would amend Title 12.1 of the Code of Virginia to open some of the agency’s records up. (Presumably a bill amending 12.1 would go to the commerce committees in the General Assembly whereas a FOIA bill in Title 2.2 would go to the general laws ones.) No specifics were given, no language offered, just a stated fact.

So here’s the thing: if you’re trying to make the case to the public that you really do operate in the sunshine, that you really are an open and transparent taxpayer-funded government agency, then the fact that you’re working on your own bill should have been made known up front, at the beginning of the meeting, or, even better, at the time the FOIA Council staff released its draft (Nov. 7).

Maybe I was the only one naive enough to have been surprised by the announcement. Maybe I was the only one who felt bad for the FOIA Council staff who was, in good faith, trying to broker some consensus. It is my hope, however, that if discussions about transparency at the SCC are to continue, then then the discussions themselves will be transparent, too.

(For an excellent recap of the meeting, go to Open Virginia Law.)