Monday afternoon, the Senate Committee on General Laws and Technology met to plow through a number of bills, including several relevant to open government. This post discusses the danger to public safety that FOIA poses and other things the audience could have learned from this instance of legislative sausage-making.
FOIA might kill people
There is an “invasion.” Criminal gang activity is “exponentially increasing.” Police are “on the front lines.” There are “lives at stake.”
It’d be understandable if you thought these militaristic and hysterical statements were describing a large and particularly dangerous Third World city. Apparently, according to Senator John Cosgrove, they describe Chesapeake, Virginia. (Not exactly the tourism ad most cities would want, but maybe that’s a problem for another day.)
What bill do you think prompted these statements? No, it wasn’t a bill to address a need for new cross-jurisdictional gang task forces, to provide more money for law enforcement, or to take any other step to combat the supposed “invasion of localities.” It was Cosgrove’s SB1402, which would add a “very small exception” to FOIA, amending Va. Code § 2.2-3711(A)(19) to authorize a public body to hold a closed meeting for “consultation with or briefings by staff members, legal counsel, or law-enforcement or emergency service officials concerning criminal street gang-related activities.”
You heard correctly. According to Cosgrove, lives are at stake because FOIA doesn’t let police talk to Chesapeake City Council members behind closed doors about gang activities.
To their credit, not all of the senators on the panel failed to notice what Cosgrove was shoveling.
One pressed Cosgrove about why gang activity was special. Why not drug crime or other types of crime? What was to stop further amendments to add other crimes, even minor ones, to the exemption? Cosgrove, apparently immune to the argument, said they were free to introduce such a bill; his was about gangs.
Another pointed out that their localities have gangs too, yet they’d not had constituents seeking a similar amendment. Did Cosgrove know of any other localities supporting the amendment? No. What made Chesapeake different? No answer.
A few advocacy groups spoke out in opposition too, with the Virginia Coalition for Open Government and the ACLU expressing concern about overbreadth and drafting, and the Virginia Press Association asking that the bill be sent to the FOIA Council for study.
Supporting Cosgrove was Chesapeake councilman Robert C. Ike, Jr., who gave the impression that his law enforcement background leaves him much better informed than the others on the City Council about how terrible the situation is in Chesapeake but who also apparently can’t share that with them in public.
One thing that didn’t come up in the hearing? Chesapeake’s 2015 legislative agenda, available on the City Council’s website, nowhere mentions gang activity. That by itself raises significant questions. Has Ike gone rogue? Was Council afraid to go public with their desire to have less information go public? It’s a mystery.
Also unmentioned? Actual data. Not only has overall U.S. crime been falling, a trend that is clear even though much of the public doesn’t realize it and the causes remain disputed, but Chesapeake is not suffering an explosion in crime. Whether one looks to unofficial crime data websites or an official federal source for the data reported by Chesapeake’s own Police Department, it’s clear that claims of an exponential increase in crime are hokum.
In the end, the heaps of hyperbole and pro-law enforcement bent of the bill narrowly prevailed – Cosgrove’s bill was reported on a party line 8-7 vote. But hopefully legislators will at some point reject this bill if there is no better justification.
But law enforcement can’t win ’em all
Law enforcement didn’t have the same lobbying success when it came to Senator Chap Petersen’s SB965, which would do two things. First, it would amend the Government Data Collection and Dissemination Practices Act (GDCDPA) to prohibit Virginia agencies from collecting or maintaining “personal information” (a term defined in Va. Code § 2.2-3801) “in a passive manner where such data is of unknown relevance and is not intended for prompt evaluation and potential use respecting suspected criminal activity or terrorism by any individual or organization.” Second, SB965 would create a limited exception to that general rule, allowing law enforcement to use license plate readers (LPRs) but requiring that the data be kept for no more than 7 days and that it be used only for investigations or missing persons.
SB965 codifies a February 2013 opinion issued by former Attorney General Ken Cuccinelli, in response to an inquiry by the Virginia State Police.
The Committee heard from various law enforcement officials, all of whom objected to Cuccinelli’s legal conclusions (particularly that license plate data was “personal information”, the collection and retention of which is limited by the GDCDPA to active investigations); the 7 day retention period; or both. But when asked by Senator Adam Ebbin to describe the usefulness of license plate data, the best that opponents could do was to point to a grand larceny case. Ebbin noted that some jurisdictions have used license plate readers to record everyone who attends gun shows, a savvy and seemingly successful riposte.
Senator Richard Black offered an amendment that would have expanded the 7 day retention period to 60 days. That came under fire from both directions. Law enforcement representatives wanted 6 months or no limit at all. The ACLU, which has shown a spotlight on LPRs, wanted zero retention, would accept 7 days as a compromise, but opposed 60 days as too much.
Senator Tom Garrett provided one of the more thoughtful points in the debate, bringing up the DC sniper case and engaging Petersen in a discussion of how broadly an investigation could stretch. Petersen agreed that was an exceptional case where broad collection of data might have been justified and, more generally, that an investigative need allowed retention for as long as needed.
Ping-pong may be a legislative game of choice
One of the ways the General Assembly disposes of legislation without actually voting it down is to send it to a committee that it cannot clear in time to proceed. Odd years are the 45 day “short session,” and next week brings “crossover day,” after which each house is only permitted to consider legislation that has passed the other house. (See the legislative calendar on the General Assembly’s website.)
Senator Steve Martin’s SB674, an email archiving bill discussed in a recent post, for example, was reported on a fairly strong 10-5 vote but also rereferred to the Senate Finance Committee, where it will almost certainly die.
On the other hand, Senator John Watkins’ SB814, to promote electronic identity management standards, survived an attempt by Senator Jennifer Wexton to refer it to the Senate Courts committee. Instead, SB814 passed unanimously other than Wexton’s abstention.
There are more fireworks to come
We close by noting one of the more entertaining points during the meeting – Senator Tom Garrett’s advocacy for SB1158, which would modernize Virginia’s fireworks laws and potentially expand the supply beyond what he described as the virtual monopoly of TNT Fireworks, sold in big box stores. Garrett was colorful – addressing safety concerns by listing many other exotic events that kill far more people than fireworks. And apparently he was persuasive – SB1158 progressed on a 9-5 vote, with 1 abstention.
In the end, one thing is certain: whether as a result of Garrett’s bill or merely as a normal part of the legislative process, you can count on there being more fireworks ahead.