The FOIA study odyssey begins

Tomorrow, Tuesday, April 22nd, the FOIA Council holds its first meeting of the year (in House Room D of the General Assembly Building, 201 N 9th St, Richmond).

The main item on the agenda is the beginning of the much touted study of the Virginia Freedom of Information Act, as required by 2014 House Joint resolution 96:

That the Virginia Freedom of Information Advisory Council be directed to study all exemptions contained in FOIA to determine the continued applicability or appropriateness of such exemptions and whether the Virginia Freedom of Information Act should be amended to eliminate any exemption from FOIA that the FOIA Council determines is no longer applicable or appropriate. In conducting its study, the FOIA Council shall also examine the organizational structure of FOIA and make recommendations to improve the readability and clarity of FOIA.  The FOIA Council shall consider comment from citizens of the Commonwealth; representatives of state and local governmental entities; broadcast, print, and electronic media sources; open government organizations; and other interested parties. [emphases added]

The study is to take 2 years, with meetings completed by November 30, 2016, and a report to be submitted by the first day of the 2017 legislative session.

The study is a huge task.  The press thus far has usually cited a figure of 172 exemptions.  That figure apparently is the sum of the 127 exemptions to FOIA’s open records provisions in Va. Code §§ 2.2-3705.1 – 2.2-3705.8 and the 45 purposes for which Va. Code § 2.2-3711 allows closed meetings.

But that figure is NOT the whole story.  FOIA exemptions are all over the place:

Hopefully the FOIA Council will study and make recommendations regarding all statutory exemptions, but, whether by design or accident, exemptions to FOIA that are found outside FOIA may also be outside the Council’s charge.

Beyond the exemptions, the FOIA Council is directed to “examine the organizational structure of FOIA and make recommendations to improve the readability and clarity of FOIA.”  That’s good – like many other Virginia statutes, FOIA would benefit from a reexamination and changes to increase readability.  Indeed, there may be no statute where it’s more important to have the statute be readable by an average citizen.

But it’s not clear whether the FOIA Council will study and make recommendations on issues beyond organization and readability.  Here are a couple of examples of matters that need study:

For the most part, FOIA doesn’t distinguish between electronic and paper records.  That’s an appropriate starting point.  But with a large and increasing portion of state records now natively electronic, there’s a need to think about the new records world we live in.  That at least means updating provisions that do directly address electronic records (Va. Code § 2.2-3704(G) reeks of the 1990s) and considering how the greater volume, necessity of software, and other distinguishing characteristics of electronic records may need to be addressed.

FOIA doesn’t do enough to address the balance that’s needed on fees – although all requesters probably should not get a free ride, it also should be unacceptable for all requesters to face the likelihood that anything beyond the simplest of requests will run into a wall of hundreds or thousands of dollars in charges to be paid in advance.  See Va. Code § 2.2-3704(H).  The “reasonable” standard of Va. Code § 2.2-3704(F) – indulging the rather questionable assumption that reasonableness is a standard – is insufficient.

Some FOIA issues may not be susceptible to a legislative solution.  Real improvement of FOIA in Virginia requires executive leadership who will promote proactive and willing openness and inculcate good practices in employees.  It’s difficult to imagine how to write legislation that would cause agencies to publish more data proactively, to design records systems for easy search and retrieval, and to ensure that employees mark and organize records to allow ready retrieval and disclosure.  (These aren’t merely open government wish lists — steps like that also would help the agencies by reducing their FOIA and discovery costs and by improving Public Records Act compliance.)

As the FOIA Council’s agenda reflects, this meeting is only the beginning of a two-year journey.  Don’t expect substantive proposals tomorrow.  But process matters, and it’s not too early to observe the Council’s actions and arrangements regarding “a study plan, an organizational time table, and … issues such as the use of subcommittees and workgroups.”  Citizens interested in open government need to participate in this process, so watch as well for how the Council plans to “consider comment from citizens of the Commonwealth; representatives of state and local governmental entities; broadcast, print, and electronic media sources; open government organizations; and other interested parties.”

 

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