The last post explained why Virginia’s AGs issue opinions, why AG opinions matter but don’t control agencies, and what effect AG opinions have in court. This post examines the recent opinion concerning mug shots and considers what can be done if an AG opinion is wrong or incomplete.
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).
Summary: Openness doesn’t prevent government from getting things done, but needlessly calcified notions of openness can be a problem. Virginia’s statutes regarding electronic meetings are a case in point.
Last week, Jason Grumet, who is President of the Bipartisan Policy Center and just so happens to be hawking a new book, wrote a column in the Washington Post advancing the thesis that “there is a dark side to sunlight.” He argues that well-intended open government reforms now have made private deliberation and compromise difficult, if not impossible, at the federal level.
If you’re thinking this is the type of thinking you’d expect from an organization founded by four consummate Washington insiders, you’re probably on to something. If you’re thinking that the argument has serious flaws, you’re right. Ellen Miller of the Sunlight Foundation does a good job of rebuttal in this blog post. She notes that Congress exempts itself from the federal Freedom of Information Act, meaning that it isn’t transparency that’s stopping our dysfunctional national legislature from deliberating and compromising. And she does a great job summing up benefits of transparency:
“[T]ransparency can shine a light on what’s not working as well as what does. It allows people to better understand how government functions so they can participate in the dialogue that is our democracy. It lets us learn of ineffective programs and push for their reform or repeal. It can also enable citizens and their representatives to learn of and prevent bad policies from being enacted. It forces those elected to represent us to justify the decisions they make in public. Only by doing that can they build confidence that they have made decisions in the public interest and not on behalf of special interests. Finally, transparency allows citizens to identify the authors of flawed or failed policies as well as successful ones, and hold them accountable (or reward them) at the ballot box.”
It’s clear that openness is not a problem in principle. But Grumet’s challenge is a useful reminder to think about whether particular open government statutes create problems in practice, and, if so, whether there are actions that might be taken that can advance efficiency and openness simultaneously. At least at the state level in Virginia, the answer is yes to both.
Yesterday, we posted regarding the Supreme Court of Virginia’s recent damages order in the ATI v. UVA FOIA case decided in April. A central sentence of that post was that “We’re at a loss to identify any basis for the $250 in damages that the Supreme Court of Virginia ordered.” The post noted that we would bring the matter to the attention of others, seeking their insight/explanation, that we would provide an update if more information became available, and that we hoped things were not as bad as they seemed. (In general, if you meet someone in the law who’s not open to new information and the possibility of things not being as expected, run the other way.)
Both on Twitter and off, leaders in Virginia’s legal & appellate community responded. Thanks Peter Vieth, Steve Emmert, and Jay O’Keefe! This post provides the explanation missed yesterday and then offers further thoughts in light of it. In sum, things are not as bad as they seemed, but they’re not good either.
UPDATE AT END OF POST.
Last week, the FOIA Council posted a new model FOIA Rights & Responsibilities template. (H/T VCOG.) That template is a document designed to assist executive branch agencies in satisfying Va. Code § 2.2-3704.1’s requirement that they post certain FOIA-related information on their public websites.
One of the changes to FOIA in 2014 was an addition to the information executive branch agencies must post. HB 837, proposed by Delegates Mark L. Keam and David I. Ramadan, required agencies to add the following statement to their websites:
“A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. No public body shall impose any extraneous, intermediary, or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body. Any duplicating fee charged by a public body shall not exceed the actual cost of duplication. All charges for the supplying of requested records shall be estimated in advance at the request of the citizen as set forth in subsection F of § 2.2-3704 of the Code of Virginia.”
As anyone familiar with Virginia’s FOIA will know, that’s essentially the content of Va. Code § 2.2-3704(F).
Now, no one wants to be a voice of negativity, and any effort by the General Assembly to support FOIA and to inform the public about FOIA seems praise-worthy. But HB 837 deserves little praise because the bill failed to contain two obvious improvements, to itself and to the Code section it amended.
With the FOIA Council’s review, such as it is, now underway, it’s time to start highlighting things in Virginia’s FOIA that merit discussion and maybe change. This post focuses on two issues: the discretion in how exemptions are applied, and who should pay for the exercise of that discretion.
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.