Let's not make this harder

Lately I’ve been seeing some pretty novel reasons why records cannot be provided to requesters. These aren’t in the same category as conflicting interpretations of exemptions, where one says a document is protected by an exemption and another claims the exemption doesn’t apply.

No, this is in the way records are delivered or not delivered, as the case may be.

The most recent example comes to via Hawes Spencer, formerly of The Hook and now doing reporting for WTVF radio.

Spencer asked the Fairfax County Police Department for a press release from 2005. At first, the sergeant said she’d email Spencer the record. When he provided his email address, however, the sergeant balked.

Spencer had given her a Gmail address, and the sergeant said she didn’t feel comfortable sending a record to a Gmail address. She said she’d be OK with sending it to a WVTF address, but when he did not provide one (pointing out the circuitousness of doing so), she said the record would be available to him (he’s in Charlottesville) in her office (she’s in Fairfax).

Spencer wanted the record quickly so he contacted a detective in the department who promptly directed an assistant to send the record to Spencer on his Gmail address.

So, no harm no foul, as far as Spencer is concerned. But what are we to make of the sergeant’s position?

First of all, this is a public record. Not just any public record. A press release. A 9-year-old press release that has already been distributed to the public. It can’t get much more public and unambiguous than that. So the problem isn’t with the content of the record.

Secondly, if the sergeant felt uncomfortable sending it to this Gmail address, does this mean that all Gmail addresses are off limits? Are there other email addresses that are being blacklisted, too? Most citizens don’t have an email address with a media company. They use their personal accounts, and very frequently those accounts are with Gmail-like email services. Of the last 20 web-form contacts received by VCOG, for example, five addresses were for Gmail, three were Verizon, two for Yahoo and one each were Comast, iCloud and AOL. How is one to know ahead of time whether their email address is approved or not?

Thirdly, FOIA  says that public bodies should deliver records to requesters in “any tangible medium  identified by the requester including . . . delivering the records through an electronic mail address provided by the requester, if that medium is used by the the public body in the regular course of body.”

To me, this says, you send it through email if you regularly use email and the requester has asked for email. Right? There does not seem to be a whole lot of discretion built into this section that allows for exceptions for, as Maria Everett has said in a slightly different context, the Ick Factor.

Fourthly, this just wastes the sergeant’s valuable time. She’s not worried about the content  of the press release -- she repeatedly said she’d release it -- she’s worried about the method of delivery. But because of that, now there’s an “issue.” Time has been spent going back and forth about whether this is a legitimate position or not; time would be spent by Spencer having to travel to Fairfax to get the record; time would be spent interacting when Spencer got there (undoubtedly at a moment when the sergeant is trying to get some critical work done that she’d have to interrupt). Instead, she could have quickly typed in his address, attached the press release, clicked “send” and it would be over and done with.

And I won’t even go into the improbability that any kind of worm, bug or malware could be visited upon the FCPD servers from merely sending a document to a Gmail address. If the servers are that vulnerable, there’s a whole other set of problems there.

I don’t like singling out anyone at the FCPD. Their longtime PIO Warren Carmichael was a gem of a man who was totally committed to good FOIA policy and practices. He literally wrote the book (along with Dana Schrad of the Virginia Association of Chiefs of Police) on FOIA for law enforcement and frequently supplemented the FOIA Council’s training for law enforcement groups.

So that I don’t pile onto them, I’ll take a moment now to point to the head-scratching policy adopted by the Department of Environmental Quality. You can read the policy for yourself here.

It’s all fairly standard stuff, except when you get to page 15. Under subsection (b) it says that if a requester wants copies, he can “arrange to produce his own copies,” provided DEQ takes steps to ensure the integrity of the originals, which makes sense. But it also says DEQ “is not required to have the records delivered to the requester by any means (mail, courier service, facsimile transmission, email, etc.) but may do so at his or her discretion.” Further, if DEQ chooses not to deliver the records, “it shall be the requester’s responsibility to obtain the records from the coordinator.”

I found out about this provision after being contacted by a citizen who lived four hours away and was told to come into the office in Richmond to make his own copy because DEQ was choosing not to mail the records to him. The response he received said, “we do not provide copying services” and offered to provide the names of three companies that would do the job.

Neither of these personal preferences or departmental policies comes anywhere close to fulfilling the policy statement found in FOIA itself that requires its provisions to be “liberally construed to promote an increased awareness by all persons of governmental activities.” Neither one of these policies is for the citizen’s benefit or for the benefit of the public at large.

Let’s stick to the basics, OK? Send an email copy of a public record to the email address provided by the requester. Email, mail or fax a copy to a requester who asks for it instead of requiring them to travel hours just to pick up a copy. Let’s not make this hard on ourselves.

UPDATE 10/6: Spencer received a message from the sargeant this morning with the releases attached. She said she'd only been on the job for two months and didn't know what the procedure was for sending releases to personal accounts. Looks like a future column will be on training . . . .