Why Virginia FOIA is broken

It’s one thing to have a reasonable law for keeping the public informed about the business of government, and another entirely to enforce and improve that law over time.

Unfortunately, in Virginia we have neither. The problems feed on one another. The law isn’t improved because it seems to be working, when in reality, it is very broken. This year’s session of the General Assembly had some possible improvements embodied in bills that would remove the draconian ‘state resident or media, and media in the DC market’ limitation on obtaining information and documents from the Commonwealth. (PDF)

James Madison’s house at Montpelier

I think few improvements to the Virginia Freedom of Information Act passed because it also is in the best interest of those very people in the legislature and the people that put them there, to try to obstruct the free flow of information to anyone who has an interest.

Let’s be absurd for a moment. Let’s say a resident of North Carolina wants to get documents or information on the recent spate of coal ash spills in that state. A student or other interested citizen of North Carolina would, by law, not be able to receive information and/or documents from any entity in Virginia, from the Danville School Board, to the Department of Environmental Quality.

This seems silly and not at all in the intent or scope of the idea of open government or FOIA in general.

Alas, the powers that be didn’t think so. This is only a small part of the problems.

The biggest problem with the VFOIA is that it isn’t enforced (repeated or chronic instances included) and it has lead to an atmosphere of ‘so what?” in most locations of local government. I am pretty sure citizens just want to know, and don’t really care about the mechanics of it. They just want mostly documents. For instance, a county government once told me that they weren’t going to publish a new notice of a meeting because it was a so-called “continued meeting”, of which there is no such animal.

When I brought this to their attention, the attitude was one of feigned surprise that anyone actually cared enough to pay attention. This is not the definition of how laws are followed, and the case of this particular county, it ended up being very costly. Decisions made 8 years ago with little public oversight have now almost bankrupted the county.

Another case was one in Westmoreland County. Citizens sued their government to obtain documents relating to the zoning and building of a paramilitary-style training center near their neighborhoods. All efforts of asking the county government had been exhausted. That left no choice, if anything was to be done at all, to sue the government not only for not producing the documents, but also flagrantly violating the VFOIA. You can read more here.

Short conclusion: the judge ruled that while the county supervisors and planning department had broken the law, he would not punish them. His reasoning was that they had little knowledge of what they were required to do in the case of a FOIA request. No punishment. The ruling itself flies in the face and is contradictory to the law itself.

§ 2.2-3702. Notice of chapter.

Any person elected, reelected, appointed or reappointed to any body not excepted from this chapter shall (i) be furnished by the public body’s administrator or legal counsel with a copy of this chapter within two weeks following election, reelection, appointment or reappointment and (ii) read and become familiar with the provisions of this chapter.

There you have it. Each elected, appointed or otherwise, a person that is covered by the law will receive a copy of the law and familiarize themselves with it. Pretty plain and simple. But the Westmoreland verdict is a perfect example of how the law is even misinterpreted by the judiciary sometimes. If it is not merely a misinterpretation, the problem is much more serious than I think it is.

I am in the middle of a study of government entities in Virginia covered by the VFOIA law. I am checking primarily two things as I take down the information and organize it. One is the suitability of notice to the public of the meeting time and place. The other is the suitability of the motion to engage in a ‘closed meeting’, or what amounts to Executive Session.

These two items alone will tell a lot about whether an entity is following the law, or if they are phoning it in. The availability of minutes in a timely fashion, and the agenda in the prescribed time before the meeting are two other good indicators.

Chances are if the public body is not handling these basic functions well, and as a matter of routine, there are much more serious problems.

I will have a series of articles coming up for Sunshine Week, starting tomorrow, March 15, 2014. I will be examining these and many more issues about VFOIA and the ways counties and other entities are following the law that provides for citizens to know what their government is really doing.

List of FOIA related bills in this year’s General Assembly

Sunshine Week happens every year, and starts this year on March 15, 2014. Check with VACOG (Virginia Coalition for Open Government) for local and national events.

Freedom of Information Council (VA General Assembly)

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Mark Brooks

Independent Journalist/Photographer --- Retired Land Surveyor originally from Colorado. USN Veteran. Involved as a citizen and journalist in politics and open government locally and sometimes statewide. Interests: photography, music, justice and equality for everyone.

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