Court rulings ignore common practice

Once again, a court has looked at an isolated provision of the Virginia Freedom of Information Act (FOIA) and decided that it means something completely different from what had been commonly accepted in the past.

This time a circuit court judge in Henrico County has held that state senators (and presumably, by extension, delegates) are not individually subject to FOIA.

Specifically, the court ruled that Sen. Siobhan Dunnavant did not have to respond to a FOIA request made by a citizen for various information on her Facebook page because the senator is not a “public body.” She is “indeed a public official,” but she is not a “legislative body” that is mentioned in FOIA’s definition of “public body,” the court concluded.

The definitions section in FOIA, which begins with an admonishment that the definitions apply “unless the context requires a different meaning,” does indeed include “any legislative body.” It goes on to include all kinds of political subdivisions and entities, just about every kind you can think of. And when it comes to meetings, these are the entities that would have to follow the meetings rules. FOIA’s records provisions, however, are not limited to public bodies only, as the court concluded. A quick look at various provisions throughout FOIA confirms that.

For example, the very first sentence of FOIA in the policy statement FOIA says, “By enacting this chapter, the General Assembly ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees.”

Officers are mentioned 14 times throughout the statute; employees are mentioned 26 times and custodians 19. These are individuals in government that have the duty to follow FOIA and whose records in particular are subject to FOIA.

Also, when it comes to the General Assembly, the working papers exemption for records applies to “each member of the Senate of Virginia and the House of Delegates.”

The very foundation of FOIA’s records provisions is that it applies to everyone in government, not just the entities as organizational wholes. The logical extension of the court’s ruling is that no individual member of a board of supervisors, city council, school board, etc., would be subject to FOIA’s records provisions. That is simply not the way FOIA has been understood and applied for nearly 50 years.

But it’s not the first time that various provisions in FOIA have been examined in a vacuum to contradict accepted practices and procedures.

In Connell v. Kersey, cited by the Henrico court, the Virginia Supreme Court also focused narrowly on the definition of public bodies to hold that constitutional officers weren’t subject to FOIA. Of course, constitutional officers had been responding to FOIA requests for decades, but the Connell case was the first to argue that they shouldn’t have to. The General Assembly stepped in the year after the Connell ruling and made clear that constitutional officers are subject to FOIA.

In 2015, the Virginia Supreme Court again focused solely on one provision — an exemption that lacked a specific phrase — to rule that there was no duty to redact records. At the time, there was another provision that applied to all exemptions and discussed withholding “portions” of records, and you would have been hard pressed to find anyone in government or access-advocate circles who did not understand the provision to mean there was a general duty to redact. The 2016 General Assembly quickly reversed the court’s decision by passing a detailed and comprehensive amendment to make crystal clear that there is a duty to redact.

In between these rulings, for a brief time, the Attorney General’s office insisted it was not subject to FOIA. The office came to that conclusion based on a 2013 Supreme Court ruling that the State Corporation Commission is not subject to FOIA because it is a constitutional office. Despite the fact that the AG is specifically mentioned throughout FOIA and had historically responded to requests for records, the AG said it didn’t have to respond to FOIA requests, either. The office has since dropped the assertion.

The FOIA Council has noted that the definitions section of FOIA should be reorganized to put specific terms closer in proximity to the sections they apply to: records, meetings or both.

The Henrico ruling should propel that item higher up on the council’s agenda, and hopefully in 2018  the General Assembly will clear up any misconceptions the opinion generates. In the meantime, let's hope any mischief wrought by the circuit court opinion is limited to just the one jurisdiction.