Until VDOT threw us a bottom-of-the-ninth curveball, Freedom of Information fared relatively well in the ’06 legislature.
There were the usual add-on FOIA exemptions for still more closed meetings and still more secret records, but most of the eight new exemptions are narrow and agency-specific. (Five are for records, three relate to meetings; several other changes involve rewrites of existing exemptions.)
Not counting special exemptions for law enforcement, Virginia’s FOIA exemptions now total 146 (way too many, but still a far cry from the 700-plus that exist in Florida’s strong open-government statute).
Open government triumphed with these measures:
• New disclosure rules for public-private partnerships.
• Renewal of remote-access subscriptions for online land records.
• Better procedures for Internet disclosure of state-agency meeting minutes.
• Mandated disclosure of large “527” political contributions from outside Virginia.
• Overhaul of the state’s Public Records Act (administered by the Library of Virginia to provide uniform rules for record retention).
As proposed by access activists, the General Assembly unanimously commended the Virginia Coalition for Open Government on its 10th anniversary and reaffirmed James Madison’s birthday on March 16 as FOI Day.
Unwisely, the House of Delegates dragged some of its operations into darkness, not sunlight.
For the first time in years, House subcommittees were allowed to kill bills (at least 482 bills, possibly more than 700) with no recorded vote.
The change was ordered in the interest of legislative “efficiency.” But many subcommittee meetings are held at strange hours. Only lobbyists may be in attendance, and it takes only two of the subcommittee members to bury a proposal. When that happens, the public has no way of knowing the names of lawmakers who killed a potential law.
As The (Fredericksburg) Free Lance-Star said, “The change hardly makes state government more transparent.”
Once again the House Rules Committee refused to allow telecasts and Web-streaming of floor debates, with Augusta County’s Del. Steve Landes casting the Republicans’ only “yes” vote. As usual, Del. Ward Armstrong, D-Henry, submitted the proposal, only to once again hear the Republican leadership assert that broadcasting House sessions would lead to showboating by delegates.
As The Richmond Times-Dispatch noted editorially, “politicians normally love cameras, and they ought to embrace them in the House chamber.”
Forty other states allow citizens to observe legislative debates, wherever they might reside; to its credit, the Virginia Senate already Web-casts and televises its floor sessions. Frankly, it’s way past time for the Virginia House to end its blackout.
Daily, pre-session Republican caucuses in House and Senate again kept the doors closed — and Democrats followed suit. This time, however, GOP delegates drew heavy fire for caucus actions in naming, or renaming, Virginia’s judges.
After losing out to downstate legislators in a battle for an open Court of Appeals judgeship, 14 past presidents of the Fairfax County Bar denounced “deals made in the dark.”
In a strongly worded statement, the bar group urged the General Assembly to “take the critical process of judicial selection out of back rooms and bathe the process in sunlight.”
Citizens of Virginia deserve merit-based selections, based on “an open process and not one brokered behind closed doors,” the bar leaders added.
Inevitably, FOIA got dragged into the contentious budget battle that kept the legislature stalemated for more than five months. With tempers running high, budget conferees sought at one point to try to bar the press from their meetings, despite a 2004 compromise that explicitly made conference committees subject to FOIA’s open-meeting rules. Some argued that without closed-door sessions, the bitterness could never be overcome (the stalemate, of course, went on anyway — and with House conferees labeled “dumb as rocks” and senators called “little Napoleons,” it was hard to see how secret sessions would make things go smoother).
At one point, House Appropriations Chair Vince Callahan, R-McLean, even resorted to firing off a FOIA letter, demanding e-mails and phone logs of the head of the community college system — all because of an op-ed article criticizing House Republicans for the budget mess.
Callahan had a legal right to invoke FOIA, but editorial writers had a field day. The Virginian-Pilot likened Callahan to the presiding cardinals at a 13th Century inquisition. The Charlottesville Daily Progress called the action ruthless “and obsessively partisan.” The Roanoke Times called it a shameful attack by House bullies.
(Ultimately, the Senate blinked first and a $72 billion budget got approved, with no fix for transportation needs. So, stay tuned!)
Del. Johnny Joannou, D-Portsmouth, struck out in his attempt to force Virginia International Terminals to obey FOIA rules, although the ports authority did persuade VIT to disclose salaries of its top three officials. Joannou had considerable support for his proposal until university and college foundations began to worry that they were being brought under FOIA along with VIT. (That battle was fought in 1998-99, and nobody had the stomach for a re-run.)
Notwithstanding the complications that occurred when Gov. Tim Kaine offered his VDOT amendments, the legislature produced a fairly strong right-to-know fix for the state’s growing number of public-private partnerships.
For more than a decade, projects covered by the Public-Private Transportation Act enjoyed a gaping FOIA loophole. “Conceptual” plans got disclosed, but almost everything else could be stamped “proprietary” (with no code definition to limit its application).
A similar loophole existed for Public-Private Education Facilities and Infrastructures Act projects. That statute, authorized four years ago, was at the root of several school-construction conflicts.
Sensing the need for reforms, the 2005 General Assembly asked the FOI Advisory Council to tackle the problem.
With VDOT representatives in the room, a council subcommittee worked out needed changes that gained unanimous legislative approval.
But just before the governor’s “veto session,” VDOT convinced the governor that weaker amendments were needed to keep internal documents secret when they dealt with multi-phase projects. The dispute threatened to get ugly until Transportation Secretary Pierce Homer agreed to place a one-year “sunset” on the amendments, giving the FOI Advisory Council a year to try to resolve the issue. (In an oversight, the PPEA changes got pulled into the administration bill, too, allowing a year of unintended secrecy for government documents involving education-related projects as well.)
Kaine vetoed an attempt to force state agencies to disclose their proposals, if any, to cut state spending. In the past, the legislature has tried to force disclosure of each agency’s spending requests.
Attorney General Robert McDonnell took the lead in closing a loophole in campaign finance laws, a loophole that enabled McDonnell to raise $2 million last fall from a nonprofit group named the Republican State Leadership Committee.
The group — known as a 527 under the federal tax code — set up a Virginia political action committee in accordance with state law. But the only donations listed came from the national RSLC. That told voters nothing about the true source of the money
In a post-election disclosure, it was learned that RSLC support came from a Who’s Who of corporate and pro-business giants, including the U.S. Chamber of Commerce, the American Tort Reform Association and various pharmaceutical, energy and manufacturing companies, as well as private, conservative donors.
No surprises there, but voters should have seen the list before the election, not after.
McDonnell worked with Del. Chris Jones, R-Suffolk; Sen. Jeannemarie Devolites Davis, R-Vienna; the State Board of Elections; and the Virginia Political Access Project to close the hole. Credit for the reform also goes to Sen. Creigh Deeds, D-Warm Springs, who opposed McDonnell in the closest statewide race in modern Virginia history.
But, as The Virginian-Pilot said on its editorial page, “Regrettably, Virginia too often seems to be one election cycle behind in enacting critical disclosure requirements. And the lobbying wizards who put money into the pockets of candidates always seem to be five steps ahead.”
— Frosty Landon