Continuing a series of posts (begun Monday) about bills in the 2015 General Assembly session, and resolutely ignoring the State of the Union nonsense, this post discusses (i) HB1573, concerning the Attorney General’s duties in representing the Commonwealth; (ii) HB1405 & HB1438, this year’s edition of the annual cage match between localities and newspapers on public notices; and (iii) HB1277 & SB955, which would permit and regulate hemp production.
The Attorney General’s Duties
HB1573, introduced by Del. Brenda Pogge and assigned to the House Courts of Justice Constitutional Law subcommittee, would charge the Attorney General with a “duty to represent the interests of the Commonwealth in any proceeding in which the constitutionality or validity of a provision of the Constitution of Virginia or of any law or regulation of the Commonwealth is contested or at issue.” The back story on this one is easy to soundbite – Republicans see Attorney General Mark Herring’s decision to argue that Virginia’s same-sex marriage ban was unconstitutional (reversing the position taken by former AG Ken Cuccinelli) as failing to do his duty.
But, as it often is, the truth is more complex. Cuccinelli represented a client (part of an executive branch under Republican Governor Bob McDonnell) that was opposed to same-sex marriage. Herring represented a client (part of an executive branch under Democratic Governor Terry McAuliffe) that’s in favor of same-sex marriage. Conceivably both were providing exactly the representation that their client wanted.
Regardless, Del. Pogge’s bill is very poorly written for its apparent purpose. The “interests of the Commonwealth” is entirely undefined, and the bill also provides no guidance on who determines what the interests of the Commonwealth are. It’s hard to see how it would matter a whit if this were a year ago and Herring’s decision was pending. If the General Assembly wants to require that the Attorney General defend the constitutionality or validity of any provision of state law so long as doing so would not violate applicable ethics rules or statutes, that’s what a bill needs to say. Absent that, HB1573 is much sound and fury, signifying nothing.
In what has become a perennial ritual, the Richmond Times-Dispatch and its institutional press colleagues are denouncing bills that would allow government bodies to use methods other than newspapers for various public notices required by law. But as discussed with respect to the electronic meetings provisions of FOIA, defining openness too narrowly can result in unjustifiable inefficiencies and no more transparency; a broader definition of transparency potentially would reach a larger audience. To be clear, we love the press — the press is often critical to a functional democracy, and its professional experience and ability to pursue openness is often unparalleled. But we’d like to see a compromise here that acknowledges the revolution in communications over the past couple of decades while still ensuring that the public gets notice.
In contrast to more straightforward substitutions of the Internet for newspapers (such as HB1405, offered by Delegate Christopher Head), HB1438, offered by Delegate Richard P. “Dickie” Bell, seems to head in the right direction. HB1438 lists 5 methods of notice, requires government to use at least two, and also requires that notices “be published in a manner gauged to ensure that the maximum number of persons within the locality are likely to be informed.” Furthermore, HB1438 codifies the ability to receive specific notice – requiring that “any resident of the locality annually filing a written request for notification with the locality shall be provided notice by the locality in a manner mutually agreed upon by the locality and such individual.”
It’s certainly possible to improve HB1438 – for example, by allowing any citizen of the Commonwealth to obtain specific notice, not just residents of the locality, and by requiring government to detail in writing a justification for why the methods chosen are best. If all could come together to hammer out some tweaks, HB1438 seems like it’d be a big step forward. (If the past is a guide, don’t hold your breath.)
If you’re looking for a bill that would allow all the public notice combatants to … mellow out … then sorry, you still need to go to Colorado for that. But a number of delegates, led by Joseph Yost and C. Matthew Fariss, and at least one senator, Rosalyn Dance, aim to legalize, regulate, and promote study of hemp production in Virginia. HB1277 & SB955 have undeniable economic and practical appeal – why continue a legal regime that requires buying from Canadians a product that’s useful and that Virginia can grow itself?
The hemp production bills also provide that “All records, data, and information filed in support of a license application shall be considered proprietary and excluded from the provisions of [FOIA].”
(Poor Justice Mims – instead of heeding his call to define proprietary (at pp. 20-22), General Assembly members propose to deploy the word yet again, undefined, and to add another exemption not contained in FOIA itself to the bushel of existing exemptions already in FOIA & scattered elsewhere throughout Virginia law.)
Presumably the rationale for a hemp license FOIA exemption is a combination of wanting to protect the privacy of growers and concern about identifying where cannabis may be found in Virginia. But this points to a larger problem with the General Assembly’s approach to lawmaking (and the FOIA Council’s ongoing review thus far): ignoring the forest while planting or examining individual trees. Some state license information is private (e.g., those listed in § 2.2-3705.3(1)); some isn’t (e.g., DGIF licensees). Some license information is now private that didn’t use to be (concealed handgun permits). Why? FOIA and other laws don’t say. Shouldn’t someone step back, study the existing landscape, and set out to create consistent criteria for which government license and permit information is private and which isn’t? (Ahem, FOIA Council, are you listening?)
FOIA exemptions should be about categories of information where the public benefits of openness are (at least arguably) outweighed by the need for confidentiality. FOIA exemptions shouldn’t just be about which agency or special interest has enough friends to attach yet another barnacle on the hull of FOIA.