Secret subpoenas, email archiving, and FOIA consequences – more 2015 bills

This post (the third in a series on 2015 bills) discusses two bills to sharpen the teeth behind FOIA by adding new potential consequences for violations (HB1646 and HB2223), a bill that would require centralized email archiving (SB674), and two bills that would permit secret subpoenas for Internet information, with no checks at all on prosecutors (HB1946 and SB919).

FOIA consequences

Virginia’s FOIA currently has the following enforcement mechanisms and consequences. Any person who believes there’s been a violation of FOIA (that they’ve been “denied the rights and privileges conferred by [FOIA]”) may bring a lawsuit. If that person “substantially prevails on the merits” in the lawsuit, he/she “shall be entitled to recover reasonable costs, including costs and reasonable fees for expert witnesses, and attorneys’ fees from the public body … unless special circumstances would make an award unjust.” Va. Code § 2.2-3713(D). In addition, if that lawsuit is “against any officer, employee, or member of a public body” and the court “finds that a violation was willfully and knowingly made,” it “shall impose upon such officer, employee, or member in his individual capacity … a civil penalty” of between $500 and $2000 for a first offense, or between $2000 and $5000 for a second offense. Va. Code § 2.2-3714. The penalty is paid to the State Literary Fund, not to the FOIA plaintiff.

In theory, FOIA’s existing penalties are pretty good. The problem is that it’s too hard to get there. Pursuing a FOIA request can often require payment of substantial charges, and then filing a lawsuit adds court fees, the complexity of legal procedures, and the intimidating prospect of full-blown adversarial litigation. Encouraging more enforcement litigation by reforming enforcement procedures seems to have a greater prospect of bolstering FOIA than upping the theoretical ante on consequences. But a couple of bills this year add more consequences, a seemingly easier route than reforming procedures.

Del. Brenda Pogge’s HB1646 would allow, but not require, a court to invalidate actions taken by public bodies at a meeting if the court finds that the public body violated the notice provision of Va. Code § 2.2-3707(E). That’s the subsection that allows anyone to request special notice of a public body’s meetings and requires the public body to provide such direct notice. The bill is currently pending in Subcommittee #2 of the House General Laws Committee (having been referred last week from the House Courts of Justice Civil subcommittee).

It is unclear why HB1646 applies only to the special notice provision of FOIA though, rather than the general public notice provisions. Isn’t it just as bad, if not worse, if a public body deprives the public as a whole of notice, rather than just one person? Also, how is a court to decide whether to exercise the power given? The bill makes the consequence permissive, not mandatory, but it provides no standards, balancing test, or criteria to determine when it’s appropriate to invalidate actions taken.

Meanwhile the House Courts Criminal subcommittee has before it Del. Rick Morris’s HB2223, which would make “any officer, employee, or member of a public body convicted of a willful and knowing violation … guilty of a Class 1 misdemeanor.”  Morris has explained to the Suffolk News-Herald that a criminal penalty would provide an alternative to litigating FOIA cases in civil court, noting that “the average citizen does not have the money to sue the government.” We agree, but his bill is not a good solution, for a few reasons.

First, it doesn’t solve the problem that Morris himself identifies. Creating the possibility of a criminal case does not help the average citizen get what they wanted under FOIA at all. Create an administrative proceeding, run by an official or body independent of the agency that’s the subject of the request, with no filing fee and procedures that are accessible and understandable to the average citizen, and you’d remove barriers to enforcement proceedings. (In some other states, a FOIA commission or official makes the first ruling on FOIA complaints, before there’s resort to courts.)

Second, it seems unlikely that criminal cases will be common. Are prosecutors (themselves part of the local or state government) likely to divert time and resources from other crimes to mount FOIA prosecutions against other government figures?

Third, a “willful and knowing” threshold to consequences is too easy to avoid – all an official needs to do is find a government attorney willing to opine that the denial is reasonable / defensible, and it’s difficult to see how the official could be prosecuted under the standard in Del. Morris’s bill. (Because if you’re relying on legal advice that your action is OK, you almost certainly don’t have the state of mind necessary for a willful and knowing violation.)  And unlike in COIA, HB2223 would not create any formal, central opinion authority, allowing any government attorney to provide that kind of cover to his client through informal advice. Attorneys want to please their clients, and it seems likely that there’d be great reluctance on the part of some government attorneys not to provide the cover of legal advice to their clients.

Email archiving

In March 2014, we got into a Twitter conversation with friends at the Virginia Coalition for Open Government and with the Library of Virginia about the state’s current, dysfunctional approach to email record-keeping. A follow-up post explained that a central archive with much simplified retention rules would go a long way toward making government more open. Sen. Steve Martin has proposed a bill (SB674) that would mandate a central archive by requiring all agencies that have central email to also subscribe to the central email archiving solution. It does not require changes to the Library’s complicated, unrealistic email retention rules, however. The bill is a good idea, as far as it goes.

Secret subpoenas

Anyone following the post-Snowden debate over the federal government’s electronic surveillance powers and procedures knows that concealing government investigations and surveillance is a key part of the government’s strategy. Some Internet companies and advocacy groups have begun to resist being muzzled, however. Twitter and EFF have fought the gag order that prevents companies from revealing their receipt of “national security letters.”

When you move from national security surveillance to more garden variety criminal investigation, the federal government often takes the same tack – trying to prevent Internet companies and others who provide information from notifying affected users. Indeed, the government has gone so far as to try to prevent court opinions authorizing gag orders from becoming public. Again, Internet companies have not always adhered to government requests for secrecy. If you want the latest information on which Internet companies notify their users of government data requests, see EFF’s annual “Who’s Got Your Back” report.

Where does Virginia fit in? A couple of legislators propose to amend state law to authorize secret subpoenas for users’ Internet information, with no apparent checks on the prosecutors who would authorize such subpoenas. The bills – Del. Jennifer McClellan’s HB1946 and Sen. Jennifer Wexton’s SB919 – have so far received little to no publicity or attention and, not coincidentally, are sailing smoothly along. Indeed, Wexton’s has already passed the Senate, with a fellow Northern Virginia Democrat, Chap Petersen, providing the only no vote. HB1946 is on the House Courts Criminal Law subcommittee’s agenda/docket for Monday, 1/26.

HB1946 & SB919 would amend Va. Code § 19.2-10.2, which carries a seemingly innocuous “Administrative subpoenas” title but actually governs law enforcement investigation into certain listed crimes, from serious crimes like kidnapping, human trafficking, and child pornography to adult prostitution, “keeping a bawdy place”, and other parts of Virginia’s vague and antiquated sex codes. The bills provide that, if any Virginia prosecutor certifies in writing “that there is reason to believe that notification or disclosure of the existence of the subpoena will endanger the life or physical safety of an individual or lead to flight from prosecution, the destruction of or tampering with evidence, the intimidation of potential witnesses, or otherwise seriously jeopardize an investigation,” then the subpoena is sealed and the service provider ordered “not to notify or disclose the existence of the subpoena to another person.”

Note the obvious issues here. First, it’s all up to the prosecutor – no magistrate or judge need authorize a secret subpoena or consider the case at all. Prosecutors are mostly good people, but like all other people, they make highly questionable decisions sometimes, and these bills give prosecutors total power, without the important check of an independent judicial official’s review. Second, the standard is incredibly weak — all that the prosecutor need say is that there’s “reason to believe” some problem will result from the subpoena not being secret. Can you think of any case in which that standard wouldn’t be met? We can’t. Third, there’s no provision for a service provider to challenge the gag order. (An accused can seek disclosure of the existence of the subpoena by motion, but how would that happen, given that the whole point of the statute is to keep subpoenas secret from accused & might-soon-be-accused persons?) Last but not least, there’s no way for the public to evaluate how prosecutors are using this power – for example, no requirement that prosecutors report their use of it to the Virginia State Crime Commission, who could then create aggregate statistics and summaries of how the power is used.

Notably, at least 3 of the 4 issues identified above could be solved easily; addressing them would not prevent or impede criminal investigations, merely guard against the abuse of secrecy in investigations.

Maybe it’s the serious crimes that are providing cover for this effort – especially in an election year, what legislator wants to be portrayed as having cast a vote impeding child porn or human trafficking investigations? But fair criminal procedures and reasonable protections for civil liberties are important regardless of what the investigators suspect the target of the investigation has done. And the listed child porn statutes aren’t limited to the disgusting abuse most of us associate with child pornography; they reach teenage sexting too (and in fact were the basis for the bizarre and disturbing investigative behavior by police and prosecutors in a Prince William sexting case).

Finally, if you believe that this secret subpoena power, once established in law, will remain limited to the listed crimes, then please email us — we have a delightful piece of property with a bridge on it that we’d like to sell you. The camel’s nose under the tent may be cliché, but it’s apt here. You’ll soon see bills quietly adding crimes to the list in § 19.2-10.2(A)(1); after all, a secret subpoena power would be just as useful for drug crimes or any other crime too.


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