Not taking no for an answer

Recent FOIA "end-runs" show why a response of "no" to a request for records doesn't always put an end to the matter.

Most recently, a homeowners' association for a neighborhood in both York County and Newport News asked both governments for certain records related to a zoning decision affecting the neighborhood. The association got most of what it sought from York County, and some of those records were communications with Newport News officials. Yet, when asked for the records from Newport News, those NN-York County communications weren't included. What else might have been excluded, either inadvertently or deliberately? Alan Albert of LeClair Ryan is representing the association in its FOIA case against Newport News.

A few weeks ago, Gov. Kaine refused to release past travel records, invoking the "working papers" exemption. It was a legitimate use of the exemption, but exemptions are discretionary, and given the realities of that moment (Kaine's pledge to keep DNC expenses separate from state ones, and revelations thru travel records that S.C. governor wasn't always where he said he was), he didn't have to use it.

So, Bob Lewis at the Associated Press went to the State Police.

They're not eligible for the working papers exemption and ended up releasing records related to their security detail for the governor. With a lttle more research and some cross-referencing, Lewis could piece together where the governor had been.

In the recent flap about Del. Phil Hamilton's employment at and funding work in behalf of ODU's learning center, Hamilton would have been able to invoke the working papers exemption, too, if asked to produce e-mails. So, reporters at the Daily Press asked non-working-papers-eligible ODU officials for their e-mails, which they generally had to produce. The e-mails revealed Hamilton & ODU had indeed considered Hamilton's employment before he sought funding.

Citizens in Westmoreland County have filed suit against the county for saying it had no records responsive to the citizens' FOIA request for records relating to a controversial land deal. How could such an expensive, controversial and complicated deal not generate any records, they asked. The case is still pending.