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A Few of My Favorite Things

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From time to time I get calls from reporters who are doing stories about Virginia’s FOIA or public access laws in general. Invariably, I’ll be asked how Virginia rates against other states: is it better, worse, average? When asked, I tend to limp along in response, hedging here, qualifying there, because it’s really tough to say.

There’s shock value in being among the worst FOIA laws in the country, and there’s pride in being among the best. I know Virginia’s law is in neither extreme. The answer is probably somewhere in the middle.

The difficulty, of course, is that records and meetings laws are so very different from state to state. No two states have identical procedures for asking for records or for going into closed session. No two states have identical exemptions. No two states have the same enforcement mechanisms. And no two states have the same provisions elsewhere in their state law annals that may affect disclosure.

The upshot is that there are portions of Virginia’s law (and every other state’s laws) that are “good,” and portions that I wish were otherwise.

Here are a few things I like about Virginia’s law:
A 5-working-day response time – I think five working days is a reasonable amount of time to allow the government to assemble the records, and if they can’t make that deadline, they can ask for another seven working days. Occasionally they’ll need more time, but Virginia’s lucky not to have a we’ll-get-to-it-when-we-get-to-it response time.
Salary disclosure – California is right now wishing they had a provision similar to Virginia’s that says that notwithstanding the personnel records exemption, salary information on government employees making more than $10,000 must be released. It makes a lot of government employees mad when that information is released, but it protects both the public (who is paying the salary) and the employee (who gets to see if he’s being paid the same as his peers). In Bell, California, city council members for years got away with exorbitant salaries, grossly in excess of any other local government in the state, because the information wasn’t readily available for public review.
Expansive definition of public records  – Except for verbal exchanges, Virginia’s law includes any mode of conveying information you can think of. The key question is whether the record was generated in the course of connecting public business. E-mail and electronic records will thus be treated the same as paper records. Records on a private computer are subject to disclosure, too, IF they were generated in the course of conducting public business.
Easy district court filing – Citizens can file a FOIA-compliance suit in district court without an attorney simply by filling out a specific form.
The FOIA Council – Championed by the Virginia Coalition for Open Government prior to its creation by the legislature in 1999, and modeled largely on a similar office in New York, the council consistently dispenses fair advice to anyone who asks. The director spends hours upon hours driving Virginia’s roads to give training sessions on FOIA. The council itself has created a respected forum for the study and recommendation of FOIA-related legislation. Technically, the FOI Act in Virginia does not mention the council, but the two go together hand-and-glove.
Here are a few things I don’t like about Virginia’s law:
Criminal investigative records – Virginia closes off access to all criminal investigative records, whether the case is open or closed. And a lot of different records can be characterized as “investigative records.” It’s an exemption without limit or end. Its reach is even broader when police do not even have to turn over police reports, as they do in many states. They only have disclose “criminal investigative information,” which gives the facts (just the facts, ma’am) but omits many other salient portions – and intangibles – of an actual police report.
The citizens-only limitation – I’ve harped on this before, but in my mind, there’s really no defensible reason why Virginia – unlike at least 44 other states in the country – can’t open its public records up to citizens of other states.
Fees – I used to think “actual cost” was preferable to a per page charge. I’m not ready to throw in the whole towel, but when I see localities claim that it will cost $240,000 to extract records from a database, or claim that only one attorney at an agency can make copies, that she will have to drive hours to the location to pick them up, and will charge for the time to make the drive, well, that looks like revenue-generation at best, a deliberate deterrent (or intimidation) at worst.
Lack of enforcement – On paper, Virginia has strong punishment provisions to deter future FOIA violations: fines up to $1,000 for the first violation; up to $2,500 for subsequent violations. Imposing these penalties would surely get an official’s attention, yet in my experience, I’ve only seen one penalty imposed, and it was overturned on appeal to a circuit court. Judges repeatedly wave away the penalties, saying it was an honest mistake. Maybe, but the law says fines can be imposed when the violation was made willfully and knowingly. Even mistakes can be made willfully and knowingly, so judges, impose the fines! (And officials, be thankful this is Virginia and not Florida, where violations can be categorized as first-degree misdemeanors and can result in jail time.)
The Citizens Access Project of the Brechner Center at the University of Florida rates various provisions found in access laws. Virginia tends to get good marks when compared to other states. On paper, as noted, the law has its ups and downs in my eyes. Note, the CAP site has not been updated in the past year.
But, this much is true about any state’s law, no matter how good or bad it looks in the statute book: it is only as good as the people using it every day. How a government agency or public body applies FOIA matters more than the words on the page.

FOIA is a mindset, not just a statute. Open minds; open government. THAT is my favorite thing.

This column originally appeared on the Virginia Coalition for Open Government website (

The image associated with the article on the homepage is used courtesy of the World Bank.

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