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Reform, But Not In A Good Way

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The Freedom of Information Advisory Council found itself on a list no state agency wants to be on: a list suggesting that various boards and commissions be shuttered.

The list, which also includes recommendations for consolidating other boards, has been compiled by a subcommittee on Governor Bob McDonnell’s Government Reform Commission.

Not all recommendations for closure or consolidation were explained, but the note next to the FOIA Council recommendation says, “ Statute already provides for attorney fees and OAG could issue official opinions if needed.”

Let’s start with the attorneys’ fees.

Section 2.2-3713(D) says that a winning FOIA petitioner (meaning the person who sues the government) “shall be entitled to recover reasonable costs . . . and attorneys’ fees,” and judges frequently award such fees. Just as frequently, however, they will reduce the attorney’s hourly rate, or they will award fees for fewer hours of work.

On the other hand, one of the leading arguments for the Council’s creation in 1999 was that it would serve as an alternative to litigation. That is, rather than having every FOIA dispute go to court, the FOIA Council could help sort out misinterpretations of the law parties on either side of the counter might have.
So, yes, attorneys’ fees are available to the petitioner. And that means that, win or lose, the state agencies and local governments will be out the costs of litigation. That is, those entities will pay for their attorneys and pay for their costs regardless. If they lose, they also have to pay some or all of the other side’s fees and costs.

The second reason given for eliminating the Council is that the Attorney General can issue official opinions if needed. I wonder: is the Attorney General’s staff (and I mean no slight to the current, or past or any future Attorney General) prepared to answer 1,700 FOIA questions per year? That’s how many inquiries the FOIA Council’s staff averaged from 2005 through 2009.

Of course, the AG’s office really wouldn’t have to handle that many requests, but it’s not because the need for answers will disappear. It’s because by statute, only certain designated officials can ask the the AG for an opinion. That list of officials includes elected officials and heads of political subdivisions, not the everyday clerks, managers and information officers who process FOIA requests.

I would imagine it would be fairly intimidating for one of those employees to draw his or her busy boss into a possible FOIA quagmire. I would also imagine that it would take a fair amount of time to first get the attention of the particular official to ask for an AG opinion and then to wait for the AG to research and write an official opinion. How much easier for the employee to pick up the phone to the FOIA Council and get a near-immediate response?

The Virginia Coalition for Open Government is a true coalition, which means we work with citizens, press and government to promote the best possible access to government records and meetings. Elimination of the Council is bad for everyone, which we’ll talk about in the coming weeks. For now, though, the two reasons cited by the Government Reform Commission are not in the government’s interest because they make government operations more expensive and less efficient.

Is that real reform?

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