The name game. Again.

Hanover County and its sheriff have filed an answer brief in the Virginia Court of Appeals in the case of Minium v. Hines. This case is about whether the sheriff can redact the names of hundreds of police officers from a salary database because the officers might one day be used in undercover operations.

VCOG has filed an amicus brief in the case that argues § 2.2-3705.1(1) -- the personnel exemption -- specifically says that names of employees must be disclosed upon request for salary data: "No provision of this chapter . . . shall be construed as denying public access to ... records of the name, position, job classification, official salary, or rate of pay" for government employees.

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The brief relies on two discretionary exemptions: 2.203706(B)(8) and (B)(10). Subdivision (B)(8) says they can withhold "portions of any records containing information related to undercover operations or protective details that would reveal the staffing, logistics, or tactical plans of such undercover operations or protective details."

Subdivision (B)(10) says they can withhold "the identity of any ... undercover officer." Neither exemption is mandatory, and (B)(10) was not used when the request was first made. It's used for the first time on appeal.

The brief leans in hard on the notion that no "rule of statutory construction" should be used to interpret these sections because (B)(8) and (B)(10) are "unambiguous." Rules of statutory construction are common-law-based canons used to sort out statutes that aren't clear. Things like "the express mention of one thing excludes all others" or the one about avoiding an absurdity.

And, OK, I get that. But the brief argues that FOIA's policy statement (2.2-3700), which says that exemptions are to be interpreted narrowly, is nothing more than a rule of statutory construction.

To me, a statutory provision that tells the user how to interpret the rest of the statute is not a mere common-law rule of statutory construction. It is THE STATUTE ITSELF.

This isn't a canon that can be used on all laws to divine meaning. FOIA’s directive to interpret its exemptions narrowly is specific to this statute. The Supreme Court of Virginia reiterated just last year that a thumb should be on the scale of the requester, in favor of access, in FOIA cases.

And then there is the whole substantive argument the brief makes about why the exemption applies (and is unambiguous). Without going any further into the weeds than I already am, I would note that while it makes much of whether disclosing a name "would REVEAL" an undercover officer's identity, the brief conveniently ignores whether the release of a bunch of names on a spreadsheet of salary data "WOULD reveal" the identities of officers. Officers who MIGHT work undercover or provide security detail IN THE FUTURE. And the answer to that is NO.

A salary spreadsheet of names doesn't say "Bob Smith, undercover officer, $90,000." It says "Bob Smith, captain, class II, $90,000." We don't know what Bob Smith does or will do, only his position and job classification, as § 2.2-3705.1(1) says.

The brief has a response to that, sort of. It says, yeah, but since we've told you that we have a pool of officers that we pull from to do various undercover operations, someone could ask us each month for the salary database and start to figure out which names (of undercover officers) are missing from that spreadsheet each month and, voila!

But. Not. If. You. Don't. Redact. The. Names. In. The. First. Place.

This is what happens when government goes looking for ways to avoid being transparent. They apply exemptions because they CAN. It's a knee-jerk reaction to keep info away from the taxpayers without thinking through the logical or policy-based implications. 

Really, this could all have been avoided -- and no taxpayer money spent on trial and appellate lawyers -- if the information had just been released without redactions. No one would have been the wiser. But instead, someone thought it would be clever to use this weird interpretation that hasn't been used in the 25 years I've been watching FOIA in Virginia.

What a waste.

You can read the county's brief and VCOG's amicus brief, written by two attorneys on VCOG's board of directors, here on VCOG's website: