Proposal would transform individual requests into a shared resource of accountability
The City of Richmond is considering the creation of an online FOIA Library.
Council members Kenya Gibson and Sarah Abubaker have proposed an ordinance that may share the same name as the FOIA Libraries required by federal law, but which appear to operate differently.
Federal FOIA requires agencies to create electronic reading rooms that consist of final opinions, including dissenting opinions, policy statements and records that have been released through a FOIA request and that staff have determined are likely to be — or already have been — the subject of additional FOIA requests.
By contrast, the Richmond proposal is as interested in tracking the metadata of each request as it is in the records themselves.
The ordinance would require the posting of:
(1) The receival [sic] date for each request;
(2) The completion date for each request, if applicable;
(3) A copy or summary of each request;
(4) The department or departments responsible for fulfilling each request;
(5) Any fees or costs assigned for fulfilling each request; and
(6) Access to any materials produced in response to each request.
The ordinance wants to make public the status of all requests, including ones that were not fulfilled for whatever reason. Their inclusion in the library wouldn’t be dependent on the content, frequency or popularity. If it’s FOIA, it’s in the library.
There is one set of FOIA responses that would not be posted to the library. Under FOIA, certain records that can be withheld from everyday requesters are nonetheless available to the people the records are about. That is, if I filed a FOIA request for your personnel file, Richmond could invoke the personnel information exemption to withhold it. But if I filed a FOIA request for my own personnel file, the exemption couldn’t be used because it specifically says, “access shall not be denied to the person who is the subject thereof.” Records like those would be kept out of the library, according to the ordinance.
The city council’s committee on government operations talked about the proposal on Sept. 24, and several citizens spoke in favor of it. The mayor’s office wasn’t quite so keen.
They said they liked the idea, but they also said they needed more time to evaluate the “unintended consequences.” One concern was the impact on data subjects (as noted, they wouldn’t be included), but the primary hesitation was “possible liability” for the city.
The mayor’s office submitted a presentation (see button link above) in response to the proposal. According to the presentation, the administration would need three full-time employees, at a cost of $300,000 to $350,000 annually, to cover both salary and possible overtime, to comply with the ordinance.
The administration wants to overlay a “rubric” on the proposed ordinance, essentially mirroring the last part of the federal FOIA reading rooms: only posting records that are expected to be or are already popular. It’s unclear whether they would need three full-time employees to do that, too, or only to implement the ordinance as is.
The administration said at the hearing that these employees would use their “subject matter expertise” to determine whether a record already released through a FOIA request could be posted on the FOIA Library. There are more than 5,500 FOIA requests each year, the administration said, and it would take these subject matter experts 30 minutes to an hour to review each request for inclusion in the library.1
Keep in mind: these are records that have already been released under FOIA.
These are records that have already been made public. Public, maybe, to a single individual, but public nonetheless. Records released under FOIA do not come with a sticker saying they can’t be shared, publicized, copied, distributed, posted or thrown away. The release is the endpoint for the FOIA transaction.
So it would be entirely possible for a tranche of records to be released and to later find their way onto the 6:00 news or the front page of The Washington Post. They could end up on an activist’s website.2 Or, they could be dropped like leaflets from an airplane.
What more subject matter expert-ing is needed to decide if those very same records can be posted to the FOIA Library? Aside from checking to see if the records are those available only to the data subjects, what more do these three employees need to do, and at an average salary of $100,000 to more than $116,000 annually?
That’s when we come back to that word: liability. Remember when Richmond Public Schools resisted releasing the report it commissioned to examine a fatal graduation-day shooting because of “legal ramifications as well as insurance coverage issues”?
It’s true. Information released through FOIA — in the form of records — could be used against the government. A citizen, a business, a lawyer could get hold of public records that show the government was negligent about something, somewhere, some time.
But that’s kind of the whole point, right?
Transparency through FOIA isn’t limited to political oversight or public debate. It extends to the legal system too: when government conduct causes harm or breaches obligations, those same records can provide the evidence needed to hold the government legally accountable.
Without public records laws, the government would control almost all the information relevant to its own potential wrongdoing. That creates an uneven playing field where harmed individuals cannot prove their case or even know that they have one. FOIA levels that playing field.
I’m not suggesting that we should be looking to file lawsuits against the government. What I am saying is that the government’s fear of a lawsuit shouldn’t be the motivation for blocking the wider release of records that have already been made public.
A FOIA Library built on previously released records doesn’t create new risks — it would simply make existing public information easier for everyone to find, use, and understand. That could actually save employee time, too. Greater visibility should not be seen as a threat to government, especially to one that is committed to openness and accountability
1 If you’re doing the math, 5,500 requests at one hour apiece equals 5,500 hours, which is 137.5 40-hour work weeks, divided by 52 weeks is 2.64 years, hence (rounding up) three full-time employees. If it took only 30 minutes per request, that would be 1.3 years, hence (rounding up) one full-time and one part-time employee.
2 Who remembers the Wingnut Collective? The police department tried to claw back records that the group received through FOIA and posted on its website.