Requesters (and government) acting badly

The FOIA Council has had its plate full this summer, studying issues affecting access and the Freedom of Information Act.

Some of the issues are not particularly problematic, more matters of degree or of detail, like figuring out the right language to use for the amount of advance notice a public body must have prior to a FOIA lawsuit’s filing.

Other issues are much more charged, including access to law enforcement records.

Also notable, and in some ways the most important to VCOG, is what if anything to do about citizens who use FOIA as a club to intentionally gum up the works of a government agency.

The “harassment-by-FOIA” bill was introduced in the 2010 legislative session and would allow government to file for an injunction against a FOIA requester for “harassment or other abuse of rights.”

The bill arose out of an instance in Powhatan County where a disgruntled potential government contractor filed multiple FOIA requests, despite requests from the county to work together. A House subcommittee was sympathetic to the county’s plight, but was also moved enough by citizen testimony about the impact of the proposed bill to refer the bill to the FOIA Council for further study.

The FOIA Council has now held two meetings on the topic, the most recent of which drew a dozen participants and extensive discussion.

Though everyone around the table agreed that there are individuals who do use FOIA just to be bothersome, there was disagreement about the extent or scope of the problem. As Christian & Barton attorney Craig Merritt, who represents the Virginia Press Association, said, the question isn’t whether this is a problem, but is it a problem that the current law cannot already address.

John Rick, Powhatan’s attorney, conceded that the language originally proposed in the bill may have been heavy handed (subcommittee chair Sen. Edd Houck (D-Spotsylvania) actually said the bill was a “jackhammer” and a “proverbial Howitzer”), but offered alternative solutions, such as allowing government to refuse to fill a FOIA request if the requester has any unpaid bills (current law gives the requester a 30-day window), or to allow a requester to collect attorneys’ fees if the government lost its attempt to restrain the requester.

The subcommittee also looked at what other states do. Not many states address the issue, and many of those that do address a slightly different problem: when the same requester asks for the same record over and over.

The statutes in Kansas and Kentucky, particularly the latter, drew the most interest of the council subcommittee members. Those statutes allow the government to refuse to fill requests that the government determines are being filed to hamper government operations. If the requester challenges the refusal in court, the government would have to prove their position by a preponderance of the evidence (Kansas), or the higher burden of clear and convincing evidence (Kentucky).

Subcommittee member Roger Wiley, a government attorney, thought the K-states’ approach best addressed VCOG’s main concern -- which is the potentially chilling effect on the legitimate requesters who may fear that the next request they file will be the one that a government employee finally snaps over, and says, “That’s harassment. I’m taking you to court!”  -- because the matter would not go to court unless the requester challenged the denial.

It was somewhat distressing that VCOG and other access advocates were repeatedly asked to “admit” there was a problem, that citizens did abuse the act. (FOIA Council Director Maria Everett thankfully mentioned that a requester cannot violate the act.)

But it also might have been helpful if there had also been an admission by those in government that a law giving government the power to prevent citizens from asking for records they are entitled to under FOIA can likewise be abused.

I see abuses by government all the time, but I also understand that not every type of abuse -- even if it happens multiple times -- is worthy of revising the current law.

I wish everyone played nice: requesters behaved properly, government responded faithfully. But as long individuals with different personalities and different agendas are the ones using and interpreting the law, we will never be able to legislate away the problem of bad actors.