FOIA basics: an editorial

When it comes to understanding both the letter and the spirit of Virginia's Freedom of Information law, John Edwards, editor/publisher of The Times of Smithfield is one of the state's best. So, it is of little surprise that he would have something to say about a couple of FOIA fights brewing in his home-county of Isle of Wight. Rather than explain the scenarios, or John's argument for why certain things are required by FOIA and certain things are not, I'll let John say it for himself. The following is an editorial he wrote for the Sept. 30 issue of The Times.

Take it away, John!

The battle for public information, Smithfield Times editorial

Twice in recent weeks, county governing boards have attempted to control information sought by one of their members. Members of the Board of Supervisors (and, surprisingly, a constitutional officer) attempted to deny Smithfield Supervisor Al Casteen information about county water usage. Four members of the School Board, meanwhile, have adopted a policy aimed at curtailing fellow board member Herb DeGroft’s frequent requests for school information.

Casteen and water use

Mr. Casteen asked a deputy in Treasurer Judy Wells’ office for some spreadsheets that he felt would show trends in county water use. Mrs. Wells declined to provide the information, and apparently complained to County Administrator Doug Caskey.

The board, which has been more than a little unhappy with Mr. Casteen’s opposition to the $146 million water deal with Norfolk, publicly called him out at a subsequent board meeting. Chairman James Brown opined that only he, the chairman, could make requests for information desired by a supervisor. Other supervisors agreed. Boy, they told him!

Not so fast, gentlemen. What Mr. Casteen requested, he says, were documents — public records held by the treasurer. He, just like any other resident of Virginia, has a right to request public records from any custodian of those documents in any state or local agency in Virginia. He did not lose that right when he was elected to the board.

What Mr. Casteen can’t expect is for a public official to “create” a document. He can’t walk into Mrs. Wells’ office and demand that she pull together information from her records into some new report or compilation. It goes beyond the Virginia Freedom of Information Act.

Then, again, neither can Mr. Brown, because the treasurer is a constitutional officer who answers to the county’s voters, not to the Board of Supervisors.

Likewise, Mr. Casteen or any other supervisor — or School Board member — can request documents from departments under their board’s control. But again, they can’t insist on the creation of documents, the compilation of information or other research.

That’s where board authority comes into play. The Board of Supervisors, generally through its county administrator, and the School Board, through its superintendent, can demand that their employees gather, sort, collate, analyze and regurgitate whatever they want, since the boards have authority over the work of those employees.

The School Board policy

School Board members and the superintendent have an ongoing battle with Mr. DeGroft — partially of his making, partially of theirs. But the policy they adopted to try and rein him in isn’t as sweeping as the comments made by the supervisors. The policy adopted by the board says that School Board members should refer “concerns and requests for information relating to school system operations.” So long as the superintendent and staff don’t try to avoid fulfilling requests for public records made by board members, the policy should be fine. The supervisors can go that far as well.

What’s a FOIA request?

Supervisor Stan Clark, unhappy with a story about the Casteen incident, insisted publicly this week that Mr. Casteen wasn’t making a FOIA request and that the story was thus incorrect. Wrong again.

Most publicly held records are covered by FOIA, and your right to them is governed by FOIA. If you go to the courthouse and ask for a meeting agenda,  you have made a request under FOIA, even though you didn’t say so.

FOIA requires only that the request “shall identify the requested records with reasonable specificity.” It adds that “The request need not make reference to this chapter in order to invoke the provisions of this chapter …” It’s a good idea to put requests in writing just to have a paper trail, but it’s absolutely not required.

If Mr. Clark, other IW supervisors, or the county attorney would like to verify that, the Freedom of Information Advisory Council in Richmond offers advice and training for the public and government officials who have questions about FOIA. An attorney there will be happy to help them with any questions they have. (Smithfield holds FOIA workshops manned by the Council staff every couple years.)

In fact, any county resident can call the FOIA Council office for advice. That’s why it was created. The number is 1-866-448-4100.

Meanwhile, this whole thing is getting a little silly. Wouldn’t it be better if the supervisors focused on facilitating the acquisition of information by Mr. Casteen — or anyone else in the county — rather than worrying about ways to block it?