FOIA Council meeting: The Empire Strikes Back

The FOIA Advisory Council met yesterday for its final meeting of the year.  We suggest that the soundtrack for this meeting should begin and end with the Imperial March.

The main agenda item was the latest draft of Delegate Scott Surovell’s long-running effort to amend the Freedom of Information Act (FOIA) to bring the SCC under FOIA, superseding the badly flawed 2011 decision by the Supreme Court of Virginia in Christian v. SCC.   An hour and a half after discussion began, it was clear that the SCC had won the battle but also that the war will rage on in the upcoming General Assembly session.

The FOIA Council’s vote

The end result of yesterday’s meeting was that the FOIA Council declined, by a vote of 5-4*, to recommend adoption of Del. Surovell’s latest draft bill.  As detailed below, however, there’s much more to the story.

   * There were two abstentions:  the Office of the Attorney General’s two representatives.  Although it is understandable that the legal department for state agencies often does not want to take public policy positions, particularly when the agencies themselves might oppose the policies at issue, the OAG’s determined neutrality comes at some cost:  a large group of lawyers, who have a lot of experience with FOIA and other state law and who work for an independently elected statewide official, seem to be side-tracked.

The front man cometh

Perhaps the meeting’s main surprise was its first speaker:  Senator John Watkins.  He announced his intent to introduce legislation in the upcoming session that will address access to SCC records in the SCC statutes of Title 12.1, not in FOIA, making it clear that he’ll be representing the SCC in the upcoming legislative duel.  Continuing to show the SCC’s commitment to transparency in a way that words alone do not, Sen. Watkins did not have an actual draft bill to present or share.

What Sen. Watkins did have was a lot to say about the SCC’s great reputation, its positive effect on business and economic development in Virginia, and how the key to all of that was keeping the information submitted by businesses out of the public eye.  Bringing the SCC under FOIA would be putting the integrity of the SCC at stake, which in turn would be putting the integrity of businesses at stake.  The worst thing the Commonwealth can do is get a reputation for adversely affecting businesses (and apparently applying FOIA to the SCC means you want to hurt or threaten business).

Sen. Watkins also asserted that he’d never heard a complaint over his decades in the legislature by an aggrieved citizen who couldn’t get the information that they needed from the SCC.  (That Christian guy a couple years ago apparently doesn’t count.  Note to anyone who’s dissatisfied with a state agency’s FOIA response:  be sure to notify Sen. Watkins.)

Some of you (undoubtedly, those that hate business) might still be wondering why it is essential that the SCC remain under separate statutes and not be part of FOIA.  Well, said Sen. Watkins, bringing the SCC under FOIA would be inserting a “third party” into the mix, and that would not be in the best interests of the Commonwealth.  No one asked him directly who he was referring to, but the relatively clear inference was that the “third party” was the FOIA Council.  Of course, the most the FOIA Council does is advise, but that point went unmentioned.

What’s wrong with involving the FOIA Council?  Well, said Sen. Watkins, the FOIA Council does not have the breadth of experience with businesses and their proprietary information that the SCC does.  FOIA Council members and staff did manage to note that FOIA already includes literally 27 exemptions for proprietary and confidential business information in the possession of other agencies and that they were not aware of any significant problems with those provisions.

The SCC’s latest line of argument

The SCC was represented at this meeting again by senior SCC lawyer Arlen Bolstad.  Mr. Bolstad’s latest attack on the Surovell bill focused on the process set forth in lines 273-81 of Del. Surovell’s draft bill:

In order for the records specified in clauses (v), (vi), and (vii) of this subdivision to be excluded from the provisions of this chapter, the private business shall make a written request to the Commission:   1. Invoking such exclusion upon submission of the records for which protection from disclosure is sought;   2. Identifying with specificity the records for which protection is sought; and   3. Stating the reasons why protection is necessary.   The Commission shall determine whether the requested exclusion from disclosure is necessary to the records for which protection is sought and shall make a written determination of the nature and scope of the protection to be afforded by it under this subdivision.

The referenced clauses appear in lines 265-71:

(v) confidential proprietary records, including balance sheets and financial statements, voluntarily provided by a private business pursuant to a promise of confidentiality from the Commission; (vi) trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.) of a private business that are not generally available to the public through regulatory disclosure or otherwise; (vii) other information submitted by a private business, where, if the records were made public, the financial interest of the Commission or private business would be adversely affected;

According to Bolstad, this process would put a significant burden on the day-to-day operations of the SCC, slowing down SCC processes and activities.  In the event of major utility outages due to weather, or a crisis in the financial industry, said Bolstad, the SCC needs information quickly and informally.  Current practices allow the SCC that access, but under Del. Surovell’s bill, any time access to proprietary and confidential information was desired, there would have to be a process that would entail a motion, docket, review and decision by a hearing examiner, a vote of the SCC, and potential appeals.

Bolstad seemed to make some headway with members of the Council in these process-oriented arguments.  That’s unfortunate, given that the process argument strikes us as badly flawed, for reasons that went unmentioned:

First, an essentially identical process already exists in numerous other contexts for numerous other agencies.  See Va. Code §§ 2.2-3705.6(11)(b) (records related to public-private partnerships), 2.2-3705.6(13) (franchising), 2.2-3705.6(18) (telecom and cable records held by localities), 2.2-3705.6(20) (DMBE), 2.2-3705.6(22) (State Inspector General), 2.2-3705.6(23) (grant records held by the Virginia Tobacco Indemnification and Community Revitalization Commission), 2.2-3705.6(24) (Commercial Space Flight Authority), 2.2-3705.6(26) (DEQ), 2.2-3705.6(27) (Dept of Aviation and Aviation Board), 2.2-4342(F) (procurement records for all state agencies that fall under the Public Procurement Act).

Somehow all those other agencies manage to make the process work without bringing business to a screeching halt.

Second, there’s nothing in the process in Del. Surovell’s bill that requires the SCC to engage in a full dialogue and determination every time records are needed.  Presumably the records that the SCC deals with on a regular basis can be categorized, and there’s nothing to stop the SCC from making the requisite determination for all records within a certain category.  Yes, businesses and the SCC would still need to remember to identify new records as falling under a categorical determination, but that hardly seems an overwhelming burden.

And third, there’s nothing in Del. Surovell’s bill that requires the particular process that Bolstad outlined.  The dialogue and determination could be informal and made administratively.  (In other words, the way the SCC described implementation of the process seemed designed to be unnecessarily unwieldy.)

FOIA Council members asked Bolstad why the SCC / Watkins bill wasn’t yet available.  He said it was still being worked on.  (Apparently drafting is a really slow process that needs to take place in the dark.)

FOIA Council members asked Bolstad whether the SCC / Watkins bill would set forth a process like that of FOIA, in which there’s a 5 business day deadline for a response, requirement for a written response, etc.  Bolstad said no, explaining that the SCC’s responses are already prompt and thorough and that the SCC / Watkins bill will be designed to keep current practices.

FOIA Council members asked Bolstad if there is a public policy counterweight to the important open government principles in Va. Code § 2.2-3700(B).  Bolstad did not identify one, responding only that the separate SCC records statutes that exist now effectively express an alternative public policy.  (Maybe Watkins would have claimed being friendly to business, had he been asked to answer that.)

One of the most notable exchanges of the day came when FOIA Council member Delegate Jim LeMunyon asked Bolstad to confirm that the SCC was working in good faith to reach a solution and clarify the law governing SCC records access, not merely trying to stall or slow down the FOIA Council & legislative process.  Bolstad responded with a somewhat extended discussion, none of which included the simple answer “yes”.

Bait and switch

Delegate Surovell has spent a lot of time and effort on his bill.  There have been at least a few drafts this year (latest here, an earlier one here), and any time stakeholders have expressed concerns, Del. Surovell has attempted to add or tweak exemptions to address those concerns.  In this, he has been faithfully (and ultimately unsuccessfully) seeking to effectuate the General Assembly’s and FOIA Council’s desire that the parties work together and achieve consensus — and of course also trying to neutralize the various scare tactics of those opposed to bringing the SCC under FOIA.

Given that history, there was more than a little irony in the fact that the latest draft bill drew concerns from FOIA Council members that its exemptions were too broad and that it had been insufficiently vetted.  To be clear, we do note with some concern the breadth of the exemptions in the latest draft bill, but one can hardly fault Del. Surovell for that — he’s been trying to accommodate concerns from the SCC and business.  Likewise, if there’s been insufficient vetting, that seems due to the SCC and business interests opposing Del. Surovell’s bill entirely and therefore not being serious participants in making it better.

Surovell’s closing pitch

Del. Surovell’s closing words before the vote addressed the idea that the SCC was special.  He agreed, noting that the SCC is the only agency that regulates monopolies, that it operates with little control by the General Assembly, and that SCC members are accountable to the public only indirectly and periodically (upon their election by the General Assembly).  In short, the SCC’s special-ness is a good reason why the sunshine that FOIA provides is needed.  We think that says things pretty well.

How to interpret the FOIA Council vote and where things go from here

It was clear that the FOIA Council was not rejecting Del. Surovell’s bill in concept, merely declining to recommend this particular version.  It was clear that the FOIA Council favors a legislative change to promote SCC records access.  It was clear that the FOIA Council would have liked to have seen and vetted the SCC / Watkins bill.

But the only real clarity about where things go from here is what we said after the workgroup meeting a month ago:  everyone is not going to agree on this subject, and the dueling approaches and bills are going to come to a head in the upcoming General Assembly session.

P.S.  Someone go gather some Ewoks and starfighters.


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