Virginia remains an outlier

If you were reading my ramblings a decade ago, you would be forgiven if you’d grown weary of my constant harping about Virginia’s bat-s***-crazy citizens-only FOIA limitation. But it’s been a while. You’ve had time to heal. And I’ve had time to amass example after example of this limitation being used to thwart individuals, academics and reporters from gaining access to Virginia’s precious informational resources.

For the lucky few whose ears never bled from my diatribes, here’s a quick primer.

• Section 2.2-3704(A) of FOIA says, “…all public records shall be open to citizens of the Commonwealth.”

For reasons that still exceed my comprehension, public bodies around the state — local, state, higher ed, etc. — have taken this section to mean, “all public records shall be open to ONLY citizens of the Commonwealth.” That is, this statement gives them permission to deny a request simply because that requester wasn’t lucky enough to call the Commonwealth home.

Virginia is seriously out of step with the rest of the country on this. Like only 5 or 6 states have anything remotely similar. That prompted some out-of-state requesters to challenge the provision in court. They took the case all the way up to the U.S. Supreme Court in 2013, where in a total smackdown, all 9 justices said, “Yeah, y’all are fine.”

Mind you, they didn’t say the limitation was good or bad or mandatory or necessary. Well, actually, Chief Justice Roberts did say during the oral argument that the limitation was pointless (Hello, Aunt Betty, can you file this FOIA for me since you live in Bristol, Virginia, and I live in Bristol, Tennessee?). They just said the limitation wasn’t unconstitutional.

The pointlessness of this was brought home to me this week when a journalist from the Midwest wanted something from a state agency.1 I warned her that she could get denied for being out of state, and sure as shooting, she got the message back that they weren’t going to process her request because she “didn’t meet the statutory requirements.”

So guess what this journalist is going to do? She’s going to call her Aunt Betty. Well, really her cousin. Her cousin who lives in Virginia is going to make the EXACT SAME REQUEST and this public body will have to answer it.

The public body didn’t GET anything from denying the first request. They will still have to do the work. They merely kicked the can down the road and bought themselves maybe a day or two.

Pointless.

For those public bodies that nonetheless embrace pointlessness, out-of-state requesters without a handy cousin, friend, colleague, or whatever have to rely on proxies. And then guess what I’ve seen a couple of public bodies do? They’ve denied the requests for being from proxies!

One locality did it when a reporter for a local TV station made the request on behalf of an out-of-state reporter with the same network who’d earlier been denied. Another locality did it because they could tell from the proxy service being used (MuckRock) that the underlying requester was from out of state.

Then there was the locality that wanted to deny a request made by a homeless person because they couldn’t verify that the scrap of sidewalk the person occupied was in Virginia.

What the …. ?

But those are only the runners-up in the chutzpah category of making it 100% clear that you’re OK with putting up barriers to your accountability. The winner in this category is not one, not two, but at least three public universities I’ve seen over the years that denied requests from out-of-state parents of students! Sure, we’ll take your tuition money, but we won’t give you records. Virginia-based parents can get information about the school, but not you, you Galling Granite Stater! You, Miscreant Michigander!

Speaking of Michigan, did you know that the water crisis that plagued the city of Flint for so long and cost so many people their health was in part uncovered by a researcher from Virginia Tech making FOIA requests? YAY, THAT GUY!

And so did you know that if the tables were turned, citizens of our state could be unknowingly drinking lead-tainted water because some Michigan State University researcher was denied critical information for being an outsider?

People who don’t live in this state have hundreds of different reasons why records in this state are important to them. Need examples?

• A Louisianan who owns property next door to a proposed sewage treatment plant in a Virginia locality.
• A Hoosier with a loved one in a nursing home who wants Virginia state inspection records.
• Someone living on the North Carolina side of Lake Gaston who owns a business on the Virginia side.
• A Navy officer in Florida who plans to return to her native Virginia upon retirement.
• A Connecticut reporter tracking down what happened in an accident that took the life of a beloved local figure.
• An academic doing nationwide research on ________ (anything, fill in the blank, but it’s not nationwide if you can’t get info from one state).

That pernicious provision still lurks in Virginia’s FOIA. An attempt in 2017 to remove it and replace it with a set of modified procedures for out-of-state requests was killed. Emboldened by the SCOTUS ruling, some states attempted to add their own citizens-only provisions, but their legislatures wisely resisted.

Luckily, based in part on FOIA Council advice, lots and lots of localities and state agencies fill out-of-state requests without batting an eyelash. YAY, THEM!

But far too many use those 11 words to deny records and information just because they can. Remember: it’s not a requirement, it’s just not unconstitutional.

Insistence on invoking this pointless limit only reflects poorly on the public bodies that use it.

1. The citizens-only provision makes exceptions for “representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth during the regular office hours of the custodian of records.”