There are a number of resources available to help find bills that may be of interest to those who believe in open government. The Virginia Coalition for Open Government’s annual legislative bill chart is a great place to start. Or you can try searching LIS or Richmond Sunlight databases for key words (on LIS, try 2.2-37*, which will identify all bills that make any changes in FOIA’s chapter). Rather than duplicate their efforts on bill identification, we’re going to leap right to quick commentary, as this year’s “short” General Assembly session powers along.
This post focuses on 5 bills (SB1133, HB1477, HB1635, HB1308, & HB1673) that are slated for consideration in Monday’s meetings of the Senate General Laws and Technology committee and the Civil and Criminal subcommittees of the House Courts of Justice committee.
In a word, the FOIA Council’s November 18 meeting was depressing. What follows is an explanation of that characterization, not a complete account of all that the FOIA Council did and didn’t do at the meeting.
As Richmond and Chesterfield voters head to the polls, chances are that they aren’t thinking much about the election for circuit court clerk. But out of all the officials being elected, there’s a pretty good chance that their circuit court clerk is the one who has the most ability to affect the openness of government.
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.
Ten days ago, the Daily Press reported that it had been unable to get copies of certain booking photos (a.k.a. mugshots). The Virginia Freedom of Information Act (FOIA) requires the release of booking photos in most circumstances. Attention thus far seems to have focused on two aspects of the Virginia State Police’s refusal to disclose the photos. This post calls attention to other aspects of the troubling refusal to disclose — based on the information available so far, State Police’s reported rationale doesn’t hold up under scrutiny.
The FOIA Council met today (9/16). Anyone who looked at the agenda and thought some action might be taken at the meeting certainly left disappointed, but there was insight into the progress and process of the FOIA Council’s 3-year review. This post recaps the meeting.
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.
Earlier this month, the Daily Progress and other media reported that the Supreme Court of Virginia awarded $250 in damages to climate scientist Michael Mann and the University of Virginia in a prominent Virginia FOIA lawsuit that we wrote about in April. (See also petitioners’ case documents webpage.) The media did not post an actual copy of the order making the award, and non-legal media often doesn’t get legal details quite right, so we questioned via tweets whether that money was actually “damages” or merely an award of appeal costs. (This is an important distinction: Damages are something awarded to a party when another party has caused a legal injury without a legal justification; appeal costs are routinely awarded to prevailing parties in an appeal without fault under Va. Rule 5:35.) We now have a copy of the order, and it appears the media was dead-on … and the Supreme Court of Virginia was dead wrong.
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.
Should judges out of court, like the proverbial children, be seen and not heard? That’s a question being asked after Senior United States District Judge Richard Kopf (in the District of Nebraska) wrote a recent post sparked by the Hobby Lobby case on his blog Hercules and the Umpire, in which he concluded by saying: “As the kids say, it is time for the [Supreme] Court [of the United States] to stfu.” (“stfu” is linked here to the same place that Judge Kopf linked it, which will reveal its meaning if you aren’t familiar with the acronym.) To which, blogging law professors Jonathan Adler, Rick Hasen, and others have responded that “perhaps it’s time for Judge Kopf to heed his own advice.”