Not so much ‘outright awful’: A round-up FOIA legislation in the 2021 session

Not so much ‘outright awful’: A round-up FOIA legislation in the 2021 session

This piece originally ran in the Jan. 22, 2021, edition of the Virginia Mercury.

If there is a silver lining to a clunky yet frenetic mostly-virtual General Assembly session, it is that there are fewer bills to sift through: 1,098 bills and resolutions this year compared with 3,911 last year. Consequently, there are also fewer bills affecting the Freedom of Information Act and access to government information than last year, too: 41 are on my radar, compared with 111 in 2020.

The bills this year have also continued a trend that started six or seven years ago: fewer and fewer of the bills related to FOIA and access are outright awful, while more and more bills are pretty darn good. Now, we’re not at a point yet where the pretty darn good bills are actually passing, but it’s an encouraging state of affairs, especially when those pretty darn good bills continue to be offered by both Democrats and Republicans.

FOIA and access are not partisan issues. I patiently smile and nod my head when partisans from one side or another claim that their party loves transparency but the other side doesn’t. I wish it were that simple! If transparency was an R or D issue, reliably and consistently, it would be a whole lot easier to advocate and lobby for good bills and against bad ones.

Instead, what happens is that lawmakers tend to want more transparency when there’s been some problem, or they may want less when they’re trying to get some new initiative off the ground. Many lawmakers want to be responsive to their local school board and government boards, while others have individual constituents who have been denied access to records or entry into a meeting.

On that score, this year is no different. What is different is how quickly these FOIA bills have already come up in legislative committees. This week, eight bills have already been considered, six in the House and two in the Senate.

• HB 1931 (Del. Mark Levine) would expand the number of times and opportunities an individual member of a public body can call into a meeting instead of meeting face-to-face with the public or his/her colleagues. While acknowledging there’s room for some flexibility, VCOG has consistently stated its opposition to broad expansion.

• HB 2025 (Del. Wendy Gooditis) would expand an exemption for mailing lists of people who sign up for email blasts from their government to also include blasts from members of a public body.

• HB 2004 is Del. Chris Hurst’s bill to provide some access to criminal investigative files that are not ongoing.

All three have advanced from the House General Laws subcommittee on Open Government and Procurement. The first two were unanimous votes, the third bill passed on a party-line vote, 6-3.

Three bills were tabled, all with letters that they be sent to the FOIA Council for study during the 2021 off-session.

HB 1997 (Del. Kathleen Murphy) would have changed the 40+ year definition of what constitutes a public meeting and would have resulted in more public business being discussed in private, away from the public.

The two other bills headed to the FOIA Council are on issues VCOG worked on over the summer and last fall. HB 2000 (Del. Danica Roem) proposes a new structure for how fees are charged under FOIA. (Del. Mike Mullin has a resolution (HJ 564) that directs the FOIA Council to study FOIA fee reform in general, including the suggestions made by HB 2000.) Fees have grown exponentially over the years and VCOG is looking forward to being involved in a deep dive into ways to rein these charges in lest they veer into territory that deters FOIA requests.

Finally, HB 2196 (Del. Mike Mullin), a bill to provide access to completed investigatory files on police misconduct/discipline, will also receive attention from the FOIA Council.

A Senate committee has advanced two bills. One would make votes taken by the Parole Board subject to public disclosure (SB 1103 from Sen. David Suetterlein). This bill has a House counterpart (HB 1972 from Del. Nick Rush) and are duplicates of bills that were proposed but derailed during last fall’s special session.

The other Senate bill is SB 1271, Sen. Jeremy McPike, which is a bill hammered out this fall between VCOG, the Virginia Press Association, VML, VACO, several regional public bodies and some local governments. It’s a bill to make expand the topics that can be discussed during a virtual meeting already allowed under emergency situations, balanced against public safeguards and opportunities for the public to participate and observe.

As happens every year, there are also bills that expand existing exemptions for trade secrets or proprietary information on various government initiatives and programs — this year, carbon sequestration and as part of a ban on cosmetics testing on animals — as well as those that protect applications and discussions of licenses granted under other initiatives — this year, marijuana legalization and expansion of some electronic gaming.

Finally, there are bills that seek to imitate Europe’s right-to-be-forgotten law and those to create a consumer data protection act and a chief data officer. These don’t directly impact public access to government information, though, along with the bills on expungement of criminal convictions, there is some interplay with the subsequent use by third parties of records obtained from public bodies.

VCOG testifies on most all FOIA bills and we post our positions on our Facebook page, Twitter and our daily newsletter. But access impacts everyone and we encourage everyone to participate. Lawmakers need to understand that people, actual people, care about access and don’t want to see obstacles placed in front of their ability to get information about the way their government operates.