"Confidential"

Good piece today in the Daily Press about York County facing a $7 million tax refund bill if the owners of a defunct area refinery win their tax abatement appeal.

The issue came to light because of an email obtained by a York County resident through a FOIA request. The resident forwarded it to the paper, and the story soon followed.

It's a great example of how and why citizens crave access to public records. They want to know what their government is doing in their name. They want to know how their tax dollars are being spent, and they want a chance to support or protest those spending decisions.

I have a minor quibble, however, with a sentence in the story, and it's about how the emails were obtained.

The county inadvertently released the confidential email as part of a request from a county resident under the Freedom of Information Act. The resident, concerned about the potential effect the tax refund would have on the county's budget, sent the email to the Daily Press earlier this month.

It may be a matter of semantics, but the email is not "confidential." The state and local governments in Virginia do not have a state secrets or a classified system of records. ANY record "prepared or owned by, or in the possession of a public body" in the "transaction of public business" is a "public record."

Records may be exempt  from disclosure by one of the umpteen exemptions in FOIA, but those exemptions are discretionary, so the government can choose to release records that could be withheld under the exemption.

There may other laws in the Virginia Code that prohibit disclosure, but, at base, even those records, as well as those that can be exempt, are public records.

The county may have intended to withhold the public records here by invoking an exemption (perhaps the one for attorney-client communication), but the records themselves are not confidential records, they are public records.

I know, I'm being awfully picky, but it's these shorthand ways of referencing things that can lead the public, press and government to misinterpret or misunderstand what the state's open records does and does not allow.