There's no confusion: this is a choice

Let’s clear up this so-called confusion about whether the personnel exemption (or any other exemption) is mandatory.

This “problem” arises in the context of the ABC refusing to release the results of the State Police’s investigation of the ABC officer who arrested UVA student Martese Johnson. The investigation clears the officer, but ABC is refusing to release the report.

In its press release, the ABC states, “Because Virginia law prohibits disclosure of personnel files, the administrative review will not be released, and Virginia ABC cannot comment on specifics of the matter.”

Virginian-Pilot reporter Patrick Wilson confirmed with the ABC spokesperson that the “Virginia law” referenced was the personnel exemption of FOIA, section 2.2-3705.1(1).

At that, I and others pointed out that FOIA doesn’t prohibit disclosure. The exemptions are discretionary and records that MAY be withheld may also be released.

But wait! said a few, both in and out of government. FOIA says “except where prohibited by law,” so they ARE prohibited from disclosing the record.

No. That’s just not the case. And here’s why.

Let’s start with FOIA’s policy statement (2.2-3700). In addition to pointing out that the “affairs of government are not intended to be conducted in an atmosphere of secrecy,” the policy also states:

Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter . . . all public records shall be available for inspection and copying upon request.

“Elect to exercise” is the same as discretion. Either you elect to exercise an exemption (and the records are withheld) or you don’t (and the records are released).

Next, look at FOIA’s procedures for records requests. In 2.2-3704 it says that the government must give one of four responses to a FOIA request for records, that is, if they are not turning over all the records: (1) release some records but withhold or redact others; (2) withhold all of the records; (3) explain that you don’t even have the records; or (4) ask for additional time to respond.

With respect to (1) and (2), when records are withheld or redacted, FOIA requires government to state in writing why the release is “prohibited by law or [why] the custodian has exercised his discretion to withhold the records in accordance with this chapter [i.e., FOIA],” AND the custodian must “cite . . . the specific Code section that authorizes the withholding of the records.”

So here again is a clear distinction between discretion under FOIA and other laws that may prohibit release.

Finally, there is the opening phrase that starts each category of FOIA’s exemptions. (FOIA’s exemptions are grouped in categories to make it easier to locate relevant topics. They are: exclusions of general application; public safety; administrative investigations; educational institutions; health and social services; proprietary records and trade secrets; and specific public bodies and limited exclusions. These are numbered 2.2-3705.1 through 2.2-3705.7 respectively.)

Each of these sections begins:

The following records are excluded from the provisions of this chapter [i.e., FOIA] but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law.

Then the exemptions under each category are listed. The personnel exemption is the first one listed under 2.2-3705.1 but it is not the only one. Twelve more exemptions follow. They are all governed by that same introductory phrase, just as all the exemptions in all the other categories are.

The specific phrase that stands out, of course, is “but may be disclosed,” which means (harking back to the policy statement and the procedures) that the use of an exemption under this chapter [i.e., FOIA] is a discretionary act. They may elect to release the records, but they may choose not to.

But some are getting hung up on the next phrase that says “except where such disclosure is prohibited by law.” They say that FOIA’s exemption prohibits the disclosure. Under this interpretation, FOIA’s exemptions are discretionary except where prohibited by law and that law is FOIA’s exemption. But that is circular logic that would make the several references to discretion meaningless.

Instead, what this section means, and how it has been interpreted for decades, is that FOIA’s exemption may be invoked unless an OTHER law prohibits release. That is a law OTHER THAN FOIA; a law elsewhere in the Virginia Code, or federal law, or court ruling.

And as FOIA’s procedures state, whether electing to use an exemption or relying on an “other law,” the government must specify the statute. The ABC specified the personnel exemption not an “other law.” The ABC did not cite an "other law" that "prohibits" the release of this file.

I’m not arguing that the personnel exemption does not or could not apply. It does, it can, I get that.

What I’m arguing against is the misinterpretation of FOIA that deflects responsibility for the decision to withhold a record on some “law” and not on the individuals making that decision. This is a CHOICE to withhold. It is a choice supported by law, but it is a choice nonetheless. 

The agency could also choose to release all or some of the file. It could choose to redact portions of the file. It could choose to release a summary of key findings. It could choose to explain the policies at issue and what would/would not constitute violation of those policies. But instead, the agency is choosing not release any information about a disturbing event that generated local, state and even national attention.

This may sound like inside-baseball to some; the nit-picking of a statute. But it matters. It matters because government must get it right, especially on such a prominent stage

The agency and the administration must take responsibility for their choice and be willing to change their course in some way or else be willing to suffer the slings and arrows that come their way. They should not, however, shift responsibility to a mythical interpretation of FOIA. Just like the 171 other records and meetings exemptions in FOIA, the personnel exemption is discretionary, not mandatory. Period.