An unnecessary study

In the comments section for a story posted on the Richmond Times-Dispatch’s website, someone wondered, “How many times is the TD going to run this?”

I had the same reaction, but probably for a different reason.

The story preceding the comment was about Hanover County’s desire to have the Freedom of Information Advisory Council take a year-long study of the county’s proposal to loosen meeting rules.

Hanover’s proposal was officially unveiled at a July meeting, where the supervisors unanimously passes a resolution in support of it, though it’s been mulling the idea for at least a year.

As I’ve previously written, Hanover gathered VCOG, the Virginia Press Association and the Virginia Association of Counties together last year to talk about tweaking the current rule that prohibits more than two members of a public body to talk about public business without triggering FOIA rules (i.e., without having to talk in public).

It was an informal and cordial discussion (joined by Del. Chris Peace, as well as Hanover’s board chair and attorney), and because the meeting was set up weeks in advance, everyone had a chance to think through their positions. VCOG’s position was that the rules should not be changed to allow three or more (or, as in the official proposal, however many members, so long as there’s not a quorum) to talk about public business privately.

Then, as now, the primary rationale offered in favor of changing the rule has been efficiency in government. When that argument was again advanced in July, VCOG again took the position that efficiency at the expense of public accountability is meaningless.

Recent reaction to the official proposal from sources other than VCOG was swift and forceful. Newspapers lambasted the proposal in editorial pages, and citizens reacted strongly in comments and in calls and inquiries to VCOG.

Things quieted down for a couple of weeks, but now it’s back, this time in the form of a board recommendation to send the proposal to the FOIA Council for study on whether a rule change “would promote greater efficiency and effectiveness while maintaining transparency in the transaction of public business.” (Note: the FOIA Council studies all kinds of proposals to amend FOIA and many of those studies result in no recommendation whatsoever to the General Assembly.)

That’s what prompted the reader’s comment. He’s apparently upset with the paper for bringing up the issue again. But I had the same reaction because I’m tired of this proposal being further advanced despite widespread public dislike of it.

And here’s another thing. A board member was quoted by the Times-Dispatch as saying, “The intention here is that we have fewer closed-door meetings, not more.”

First, and let me state this emphatically, that my thoughts here are made in response to the proposal only -- in a vacuum, as it were -- not to the people proposing it. I do not have any opinion or even knowledge of how Hanover supervisors have conducted business in the past and have no reason to doubt their sincerity or integrity.

Nonetheless, the assertion that the proposal would lead to fewer closed meeting completely misses the mark of the public’s concern.

If officials get to talk privately among themselves in groups of three, instead of two, then they won’t have to have as  many closed meetings (convened from a public meeting, work session, retreat, etc.). If “closed meetings” is meant as those meetings conducted within the confines of a public meeting, the argument that they would have fewer of these kinds of closed meetings may or may not be true. It’s hard to tell, since some issues necessitating a closed session can crop up unexpectedly.

If, however, “closed meetings” is defined more broadly as any meeting of public officials that the public is not allowed to witness or attend, then the argument fails.

FOIA says in its policy preamble that “meetings shall be presumed open,” so the majority of what the public body talks about must be talked about in the open. Because some topics are sensitive -- from personnel issues to the government’s negotiating strategy to attorney-client communication to trade secrets -- FOIA allows them to be discussed out of public ear-shot. FOIA provides 45 exemptions for the government’s use; forty-five topics that can be -- at the government’s discretion, it is not required -- discussed behind closed doors.

FOIA also says that any time these exemptions are invoked, certain procedures must be followed: motions before the closed meeting stating the purpose of the closed session and certifications when the public body comes back into open session.

What the proposal will do is allow more public officials to talk in private not just about the the topics covered in those 45 exemptions, but about any idea or issue under the sun any time and anywhere they want. There are no procedural limits, save for the number of people who can be present. There are no limits on the topics. There is no advance notice, no acknowledgement after the fact.

Whether two or three members of a board can meet on their own without triggering FOIA, even when talking about issues that would have to be talked about openly if they were discussed in a public meeting, has little bearing on how many “closed meetings,” as defined by FOIA, there will be.

Upping the attendance number from two to three could possibly result in fewer off-the-record discussions about topics that could not be discussed in closed session. That is, if forced to meet two-by-two, it might take five separate meetings to get everyone’s opinion, whereas the number of gatherings could be reduced to three if three people on a seven-member board can meet.

But again: this doesn’t relate to official closed meetings. Instead it relates to the benefit of the public body: what is more convenient to them. It does not benefit the public generally, and certainly not those who attend public meetings only to see votes taken on issues that have already been discussed and hashed out in private.

It may not seem like a big deal to go from just two to three, and other states may have a different threshold. But this is a policy that’s been in place for decades. There is no compelling reason for changing that policy at this moment.