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Yesterday, the FOIA and procurement subcommittee of the House General Laws Committee considered 21 bills, including 12 that are on VCOG’s watch list.
Several of the bills were FOIA Council recommendations, all of which passed. VCOG opposed one of those recommendations: HB904, which creates a trade secrets exemption that extends not just to trade secret provisions already in FOIA, but to all trade secrets. VCOG shared the specific concern raised by the environmental community, who last year fought to ensure that fracking companies could not call the chemicals they use in fracking a trade secret. Under HB904 there is worry that they and perhaps other entities under the code will have that protection. The bill advanced on a 5-3 vote.
VCOG backed a bill that was PBI'ed (passed by indefinitely) and sent to the FOIA Council. HB213 would give FOIA Council opinions more authority, something VCOG has supported for years.
VCOG found itself in the awkward position of opposing a bill to create a FOIA ombudsman in the AG’s office. Del. Roem brought the bill, along with boundless energy and enthusiasm for the proposal. Subcommittee members were clearly intrigued, asking many questions and generally speaking positively about the idea. The FOIA Council and a representative of the AG’s office answered questions but remained neutral, especially when it came to how the office would be set up and how much it would cost. The Press Association spoke in support of the ombudsman as a consumer advocate-type position, as did a representative from the Richmond Free Press.
VCOG was the only speaker in opposition, and if that sounds counterintuitive, I’d like to explain.
First, I am thrilled that someone with Del. Roem’s passion for transparency is making her voice heard in the General Assembly. I am also thrilled to see these subcommittee members (only one of whom has ever been on a FOIA subcommittee) so interested and involved. They asked great questions not only on this bill but others.
But as to the specific proposal, I first pointed out why we have the FOIA Council and why we have it in the legislative branch. That was a deliberate choice 17 years ago, when the office was created, that the AG’s office was not set up to field citizen questions. The FOIA Council was to serve as a resource for citizens, the press and government.
If we were creating a new agency out of whole cloth today, we might make a different choice, one like Del. Roem suggests, which itself is modeled after Maryland’s ombudsman. Keep in mind, though, that the ombudsman is Maryland’s first government FOIA office. They don’t have a competing office elsewhere in government. But we do: the FOIA Council already exists.
If there were two offices offering to help with FOIA disputes, I fear much confusion among state agencies — whose FOIA officers are required by statute to be trained by the FOIA Council annually — who could cherry pick among potentially conflicting opinions or direction of the two entities. I fear confusion among the public, too, when having to go to two different agencies for help with FOIA questions of state government versus local government.
Despite much talk about the new office being a place for the public to go, there was nothing in the actual wording of the bill that paved a pathway for how to go about doing that. State statute still allows only certain named officers to ask the AG for an opinion on matters like interpreting FOIA. Citizens cannot. Again, that was one reason the FOIA Council was established, so citizens did have a place to ask for an opinion.
To me, the answer to having a more hands-on approach to FOIA dispute resolution is not to create another agency but to endow the FOIA Council with more powers, authority and funding. HB213 (mentioned above) addresses that second point.
There was a fiscal impact statement of more than $800,000 on this bill. While I think the estimate was likely overblown, even a fraction of that amount could be funneled to the FOIA Council instead to give them more staff and resources to be more involved with any potential new powers.
The motion on the bill was to PBI and that motion carried on a 5-3 vote, which means the bill was defeated.
Del. Roem raised a really important issue and I hope like crazy that this was an opening salvo to beefed up FOIA compliance efforts, not the last word.
The Senate FOIA meets today at 9 a.m. I will not be present because today I'm teaching the FOIA part of a FOIA and records management webinar we're hosting at Tidewater Community College with Glenn Smith of the Library of Virginia. Over 270 government employees are registered! Nonetheless, we did submit a chart of VCOG's positions on the subcommittee bills here.
Thanks for reading!
Megan Rhyne
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Prince William County still has an outside shot at convincing Amazon to build its second headquarters in the area, though county leaders are increasingly convinced the online retail giant might be more inclined to build a satellite facility in Prince William instead of the full, $5-billion development the company is advertising. Amazon announced Jan. 18 that Northern Virginia, Washington, D.C., and Montgomery County, Maryland, are among the company’s 20 preferred options for the massive project, fueling speculation that the D.C. region is emerging as a frontrunner in the race for “HQ2.” Yet the company didn’t specify where in Northern Virginia it might locate the facility, which is designed to support roughly 50,000 new jobs, and officials across the region are pondering the consequential question of which locality might land the project if Amazon does indeed pick the region. But there’s no telling how other Northern Virginia contenders may sweeten the pot with tax breaks or other incentives for Amazon, to get a leg up on the competition. While other cities and counties around the country have attracted scrutiny for the generosity of their proposals, exemptions in Virginia’s Freedom of Information Act have so far helped the state’s localities shield their HQ2 proposals from public view. Prince William is no exception, with county staff citing an exemption against releasing “trade secrets” in denying a request from InsideNoVa for proposal documents.
InsideNoVa
Some Spotsylvania leaders expressed skepticism Tuesday over the county’s longstanding practice of adding a small amount of fluoride to drinking water while others called it a nonissue. During the Spotsylvania meeting’s public-comments period, 21 speakers—including dentists, representatives of health care organizations, and a school nurse—urged supervisors to keep fluoridating the drinking water, while two advised against it. Just three of the speakers live in Spotsylvania, and at least five reside in Fredericksburg, though several of the nonresidents spoke on behalf of organizations or dental offices that serve Spotsylvanians. Other speakers came from Northern Virginia, Richmond, North Carolina and Maryland, prompting Supervisor Skinner to remark that he’s never seen that many people from outside the county address the board. “That means an awful lot to me…that you would take that time,” he told the audience.
The Free Lance-Star
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