Responding to denials to public records requests

Government agencies' denials for public records are a common experience among those requesting access. Shelley Kimball, the editor of Truth in the Field, and Robert Holloway, an open government activist in York County, Virginia discussed what it is like to be denied access and how best to respond.

Why is it important for people to request government information?

It is the only way for citizens to learn what is truly happening within their government. Public officials, by their very nature, suddenly become secretive once they are elected or hired. Most (not all) believe that the regular citizen doesn’t have a clue how government should be run. This is especially true with long-time officials -- those who have been in office for several terms or have held the same supervisory position for many years. They begin to look at themselves as the ‘owner’ of the community they are serving and resent being questioned by we commoners. They believe they know what is best for their municipality. FOIA gives the average Joe the ability to see inside the closed ranks. In my case, it has provided many avenues into how our tax money is used and/or abused.

How often do you think you have been denied access to records?

I request emails more than any other type of record. I review thousands every year. In every request that I have ever made for emails, many have been denied for a variety of reasons. I have never been denied access to every message, just the ones that officials can find a loophole to stop the release.

A couple of times I have requested the email list of our elected officials and they have been denied. In both cases, I began the process of filing a Writ with the court and the county backed down after consulting with the FOIA Advisory Council.

Another problem I have had through the years is emails on private servers. It is impossible to know if all messages are actually being released when an official uses his own email account to conduct business. The use of private servers is a good indication of backdoor politics. When officials don’t want the public to know what is taking place, they will use private servers. Although still required to release public business information, there is no way for the municipality or the requestor to know for certain.  

I’ve also been denied text messages, which have become a mainstay in local governing. I am often told that officials do not have the means to save their texts. I know they exist because the count for them shows up on the cell phone records that I request. Still, it is rare that they are actually available through FOIA.

Frankly, I miss a lot of information because the labor charges are too high. This is a long used tactic to prevent citizens from obtaining info through FOIA. Sometimes I can refine the search parameters and get the costs down. Not always.

How do denials usually happen?

Denials are always done under state code. In a recent request for emails from every employee in one department, I received this response: 

• Total emails among 4 employees: 1745
  • ·       463 were withheld per Code of VA 2.2-3701, definition of public records, 
  • ·       86 were withheld per Code of VA 2.2-3705.1(1), personnel records,
  • ·       261 were withheld per Code of VA 2.2-3705.1(6), vendor proprietary information software that may be in the public records of a public body

And so it goes. If there is a message that remotely sounds like it would fit in a State exemption, it is pulled from the response. Remember, a jurisdiction doesn’t have to exempt anything that falls under one of the exemptions. It is their choice. In my experience, they always hold everything they can.

After a denial, what do you do next?

It depends on what is included in the response. I have been at this for over ten years and I don’t have as much problem as when I started with getting information. By that I mean that I am well known by the local governments and they don’t go out of their way to deny my requests, (though they will still jerk me around, occasionally.) 

Many of my findings have been covered by our local papers and TV news over the years. I know where to look and who to talk to. I have developed a source of info from ‘inside’, if you will. In my own county, I am often contacted personally by county officials to explain something that I have asked about. Usually it’s the county attorney, but occasionally it’s either our county administrator or his assistant.

The reason for this personal service is that I am a daily contributor to a Facebook page here in York County that has 10,500 members, and 99% are county voters. That is three times more than voted in our last local district election. (I was a candidate in that election.)

Before Facebook, I maintained a blog where I would routinely post info from my FOIA requests. If I can’t get an honest answer from officials, I take it to the citizens. It doesn’t take many calls or emails from angry voters to get officials off their asses. In addition, our local TV channels and newspapers monitor the Facebook page and they will often pick up on a story and run with it.

What makes the most successful requests?

When I began using FOIA in 2006, my neighbors and I were concerned about a poorly managed construction job that was damaging our properties. We couldn’t get the county to take any action, so we got together and started digging. A direct result of the information garnered was a large front page story in our local paper. County officials weren’t happy with us/me, but we did get action as a result.

It helps to know what you are looking for. FOIA instructions in every city and county advises to be as specific as possible. In my experience, I have had much better success by not being too specific. It isn't always helpful for the jurisdiction to know exactly what you are searching for. That makes it easy for them to hide the facts. I prefer to look for a backdoor. This takes practice and experience as you learn the traits of the persons providing the info, but can be very rewarding. I NEVER assume that officials are going to be honest. Bureaucrats are not known for freely volunteering information.

What advice would you give someone whose request has been denied?

I think that depends on why it was denied. They have to provide a legal reason. There is always the Writ of Mandamus to try and force the answer, but these are time consuming and not foolproof. In 11 years, I have never had to file one. I have started the proceedings twice, but the info I was seeking was provided before it went in front of a judge.

FOIA is not easy. Officials hate it to their very core. Many have told me so. I had a request denied by a high-ranking police official years ago simply because he didn’t believe that police should have to respond to FOIA requests. Fortunately, his boss knew better and made certain my questions were answered.

Public officials will occasionally try to bully a new requestor that may not know all of the laws that well. You can’t let yourself be intimidated. If a request is denied, take it to the next level. Although not required, I prefer to make my requests by email. It is easy to maintain a record and nothing is lost in translation.

You have to be persistent and know the codes. VCOG has been a tremendous help to me over the years.

Robert Holloway was an Independent candidate for York County Supervisor in 2015. He uses Virginia’s FOIA weekly to understand what York County is up to, and he works with local groups to combat overdevelopment.

Truth in the Field is a series of columns intended to encourage citizens' use of open government provisions. For more information or to submit a column for potential publication, please contact the editor, Shelley Kimball, at kimball@gwu.edu.