Using Virginia's Freedom of Information Act

The Virginia law that dictates what governments have to share with its residents is a 57-page document that lists dozens of records and meetings that must be open and transparent, then lists dozens of reasons governments can keep them secret.

It's called the Virginia Freedom of Information Act and it's part of the Code of Virginia at 2.2-3700. It can be found online here. http://law.lis.virginia.gov/vacodepopularnames/virginia-freedom-of-information-act.

The opening sections of the law seem quite positive:

"The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government."

The next paragraph also is encouraging:

"The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government."

Then down into the statute are lists of nearly 200 categories of records and meetings that can be closed to the state's residents. Some of these records are closed by state or federal laws, such as an individual's adoption, medical and academic records. Others are records can be excluded from disclosure, but public officers have the discretion to release them if they want to.

And some records appear to be open, but under certain broad circumstances can be withheld. An example is police criminal incident reports. This what the law says:

1. Records required to be released:

a. Criminal incident information relating to felony offenses, which shall include:

(1) A general description of the criminal activity reported; (2) The date the alleged crime was committed; (3) The general location where the alleged crime was committed; (4) The identity of the investigating officer or other point of contact; and (5) A general description of any injuries suffered or property damaged or stolen.

But just below that it comes this:

Where the release of criminal incident information, however, is likely to jeopardize an ongoing investigation or prosecution or the safety of an individual, cause a suspect to flee or evade detection, or result in the destruction of evidence, such information may be withheld until the above-referenced damage is no longer likely to occur from release of the information.

It appears that the law giveth and then it taketh away. Those exclusions from release can be quite subjective and police are not required to cite which one of the exclusions they are invoking.

In fairness, some law enforcement agencies are very transparent and voluntarily release information on all incidents and arrests. Others aren't quite that open and a few just don't respond at all.

Reporters don't have any more right to government records or meetings than the public, though surveys on FOIA compliance naturally indicate journalists find it easier to obtain records. Requestors do not have to tell any public officer why they are asking for a record. It's frankly none of their business why a member of the public wants to see a public record. A requestor can be refused if he or she is not a Virginia resident.

To a first-time requestor, the process of obtaining public records may seem perplexing and confrontational. The statute is written in legalese that seems foreign to a FOIA novice and it often makes references to other sections of the massive Code of Virginia. As bewildering as it can seem, there's no reason to despair or give up.

Help is available and hiring a lawyer won't be required.

Two agencies, one a non-profit and one government, are designed to assist and educate the public about open government and how to gain access to records and meetings.

The Virginia Coalition of Open Government is the non-profit and has as its members and officers public employees, educators, journalists, FOIA officers and folks who just believe strongly in open government. Now in its 20th year, it provides education to anyone who asks, helps train public officials and lobbies the General Assembly. At times, it has filed amicus curiae briefs on transparency cases pending in appellate courts. Executive Director Megan Rhyne is always available to answer FOIA questions. The website is packed with legal opinions from the courts and state agencies. It explains how to file FOIA requests and even helps make a request. The website is http://www.opengovva.org and Rhyne can be reached at 540-353-8264.

The state agency is the Virginia Freedom of Information Advisory Council. It has a small staff of lawyers who respond to inquiries from the public, journalists and government employees and conduct training about FOIA. It also studies and holds hearings on proposed changes in the law. It has a website that provides instructions on how to file FOIA requests, including sample letters. It also has several reference publications that explain FOIA issues in layman's terms. The phone number for the FOIA Council is 866-448-4100.

In considering a FOIA request, remember that the information you are seeking has been gathered and maintained with taxpayers' money by employees paid by taxpayers. So, in simple terms, it belongs to the community and the government is just holding it for us.

If a request is denied, the government must explain why in writing and quote the specific legal exemption it is invoking. Insist on it.

Dick Hammerstrom, of Frederiscksburg, Virginia, is a retired journalist and serves as president of the Virginia Coalition for Open Government.

Truth in the Field is a series of columns intended to encourage citizens' use of open government provisions. For more information or to submit a column for potential publication, please contact the editor, Shelley Kimball, at kimball@gwu.edu.