FOIA can reconnect people with their government

Citizen discontent is real. Fighting their FOIA requests doesn't help.

We’ve read a lot in the past several months about how voters are mad. All over the world, left and right-leaning regimes are being turfed out or have lost big majorities. It almost doesn’t matter who the candidates are, so long as they’re not the current ones.

From my own observations (I am a devout reader of The Economist because of its news from around the world), this has been simmering for years, but the pandemic laid it bare. No matter how a country handled the pandemic, populations were traumatized by the chaos and uncertainty it unleashed. COVID ripped the Band-Aid off our general indulgence of governmental status quo and gave voice to our collective discontent.

People — not voters: people —are more and more alienated from their government. Government is not serving their needs. Government is not responsive to us.

And it’s that last point that brings me here today. Yesterday at the FOIA Council, I heard examples of how fraustrated, disheartened, even sad, people are about how government fights them when they try to learn more about what’s happening around and sometimes to them.

Ramin Seddiq, a citizen from Northern Virginia, and Maria Everett¹, a citizen appointee to the council, expressed frustration with the work-group study of FOIA fees. Everett noted all the many concessions to government that were made during the work group’s meetings aimed at balancing the public’s need for lower fees against the government’s need for staff, funding, and relief from the outlier requesters who overburden government offices. And yet, Everett said, several individuals who participated in all or most of the meetings and who had access to draft legislation would not commit their organizations to the final product. Seddiq was frustrated that there’d been any concessions at all, given the resistance to many pro-requester suggestions.

Then there was Kandise Lucas, an advocate for families with special education children. For decades, Lucas has stepped in to empower families who have been unable to get free electronic copies of their children’s records, even though FOIA would allow both. Why? Because school districts and their zealous attorneys treat their requests as ones made under the Family Educational Rights and Privacy Act (FERPA) instead of FOIA. They insist that FERPA allows them to charge, that FERPA says that handing over a box of paper records is fine, that FERPA allows them 45 days to respond instead of the 5 working days set out in FOIA.²

Then there was Theo Marcus, a Spotsylvania parent and former high school swim coach whose FOIA suit against the county school board was thrown out by a judge who imposed a procedural hurdle (service of process by a sheriff or process-serving company) that does not exist in FOIA. His frustration was palpable because he had not only been stonewalled by the school division, but he had not been able to get satisfactory answers from the authors of a general district court manual that seems to support the errant interpretation.

And for me, just this week, I’ve heard from an out-of-state journalist who was turned away by Virginia Tech precisely for being out of state when he tried to get records related to a university professor who has a consulting agreement of sorts with the journalist’s hometown.

There’s a man in Virginia Beach who has been trying for a year to get police camera footage of an incident involving him and an aggressive dog. Some time within that year, the video was deleted.

A school district has ignored a parent’s request for records about the training school staff gets for responding to emergencies, like three three tornado warnings in one day where her kids’ school went on lockdown.

A member of a county board of supervisors won’t turn over any records about public business that are on his phone and he’s so indignant that he’s been asked to do so that he’s also suggested that the board review anything sent out under FOIA.

That’s just half of the calls I’ve received in the past three days.

Last week it was the attorney general’s office citing the ongoing criminal investigative files exemption to withhold its own financial records from more than four years ago.

Cost projections for a water project were withheld as proprietary records.

A school district secured the dismissal of a parent’s pro se FOIA petition on a procedural technicality, thus further delaying his attempt to get records related to the injury his small child suffered from sloppy school bus driving.

Every time these people encounter obstacles, they go through a series of emotions not unlike the stages of grief. They are disbelieving. They are suspicious. They are angry. They feel isolated.

It may not seem like a big deal to the government — it’s just another no, and the statute (may) allow it, what’s the big deal? The big deal is that for citizen requesters, this feels like David and Goliath. This is often THE most important thing to them at that moment.

When they call VCOG and seek answers, explanations, guidance and, sadly, more help than I can give them, I often find myself in a role more similar to a therapist than an advocate. They need someone to listen to them. They are consumed. Bereft. They take cold comfort in knowing that people like them all over the state (all over the country) are in similar straits. What good does it do the Spotsylvania parent to know that someone in Danville is suffering through equally awful attempts to get information?

If only they could exercise their statutorily bestowed right to access government information, within the bounds of the law, but without antagonism, disregard for procedures or official-sounding but unsupported statement about why the government must charge more or take more time or keep more information away from them.

It’s always struck me oddly that governments will spend millions of dollars of their annual budget on public relations and communications to tell us about all the wonderful things they do for us, while simultaneously insisting that they just don’t have the time and resources to respond to FOIA requests. It’s odd because if FOIA requests are handled timely, efficiently, in a friendly manner, most requesters are going to walk away feeling better about their government than they would from seeing posters of smiling models enjoying a new bike path.

If citizens feel disconnected from their governments — elected officials and the public bodies they represent — an important step towards reconnecting would be to stop fighting those citizens over the knowledge that access to information brings.

1. Everett is the current president of VCOG’s board of directors.

2. On this point, I wrote to the U.S. Department of Education’s FERPA office and was told that the 45 days is a ceiling. A school district can’t wait MORE than 45 days, but “if there were a State law that required schools to provide parents with access to their children’s education records in less than 45 days, then that would not be seen as a ‘conflict’ with FERPA because it provides more rights to parents.”

What more could they have said?

Some thoughts on FOIA's policy statement and what it means to judicial interpretation of the law

Amanda Millis was VCOG’s 2024 Laurence E. Richardson Legal Fellow. She is a second-year law student at William & Mary. The opinions expressed are her own.

In recent court cases, we’ve seen how easily judges can take the words of VFOIA and extend them into the void, pulling more and more government work out of the reach of the rest of us. They dive into interpreting the words as if all they had at their disposal were their own minds and their own understandings of the words on paper. But thankfully, judges aren’t actually alone. Enter VFOIA’s policy statement, § 2.2-3700, which opens VFOIA:

By enacting this chapter, the General Assembly ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted.

It’s important to note that the drafters of these words chose the word “custody.” To me, that means that while the government maintains the records, they do not own them as I might own a piece of art I created. The records the government has “custody” of are owned by the public. They are the ones government employees and officials make (presumably) to do the work of the people. VFOIA says that the people’s business is the people’s business.

Every time the government invokes an exemption, the public is at risk of losing their right of access. All it takes is a court willing to defer to the government or unwilling to engage with VFOIA on its own terms to cement government attempts to withhold information.

For comparison, my home state of North Carolina only has this to state the reason for enacting our Open Meetings Law:

Whereas the public bodies that administer the legislative, policy-making, quasi-judicial, administrative, and advisory functions of North Carolina and its political subdivisions exist solely to conduct the people's business, it is the public policy of North Carolina that the hearings, deliberations, and actions of these bodies be conducted openly. (N.C.G.S § 143-318.9)

That’s the extent of its policy statement. Thankfully, my adoptive state of Virginia has something more—much more. VFOIA’s policy statement doesn’t just tell us why we have the law but how to use it.

The policy statement doesn’t tell the government or the courts that exemptions aren’t important. It only reminds them that VFOIA is there primarily to establish, safeguard, and protect the public’s right to access and oversee their government. Luckily, it also tells them how to do that:

The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government.

Just as with any other part of VFOIA, the words of the policy statement are the law. That means that you can’t quote the part of VFOIA telling us not to blindly trust the government’s reading of an exemption and then blindly trust the government’s reading of that exemption. That also means that the policy statement doesn’t come out of hibernation only when the government can rustle up an argument about why “or” actually means “and.”

In the face of attacks on the authority of the policy statement as the law, it’s worth looking at what the policy statement doesn’t do.

It doesn’t take away the opportunity for the government to exercise an exemption and it doesn’t hamstring courts deciding VFOIA cases. The policy statement is instead there to prevent the government from hiring good lawyers who can convince a court that the government has greater ability to work in secret than it really does.

It isn’t there to be quoted dismissively but to be referred back to. The policy statement is a unique tool designed because VFOIA is a unique law. As a tool, it’s there to be used, and really, it helps courts caught in difficult cases.

The final frustration in this is this painful irony that the opening directive of VFOIA, which is specially designed to help courts and guide decisions toward the sunshine, is so regularly misunderstood and dismissed as optional. Yet those words are really as clear as they could be:

Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law.

So, when an exemption could be granted or could just as easily be read to not apply, courts don’t need to get their noses into dictionaries or historical archives—all they need to do is figure out which interpretation favors public access and doesn’t expand the government’s shadow of secrecy.

To put it shortly, all they need to do is what the policy statement tells them to do—choose the narrower exemption option. It really is that easy and that’s a good thing for a court system that doesn’t need extra work on its plate.

Unfortunately, some courts don’t give full weight to that important statement.

In NPR v. Department of Corrections, on appeal to the Virginia Court of Appeals, the VA Department of Corrections is arguing that the Records of Persons Imprisoned Exemption of § 2.2-3706(B)(4) applies to the tapes an employee of VDOC made recording the agency’s executions. That is, that tapes featuring primarily VDOC’s employees, made by VDOC’s employees, with minimal, if any, audible words from the prisoners, and likely made without their knowledge, are exempt. The Charlottesville Circuit Court agreed, saying prison security outweighed, but without giving fair weight to the value of the public knowledge they’re excluding.

In Commonwealth v. Sawyer, also on appeal to the Court of Appeals, the Governor’s Office is arguing that the working papers and correspondence exemption of § 2.2-3705.7(2) covers documents made by subordinate employees in the Office of the Governor. That is, despite the Governor’s Office being explicitly and narrowly defined in the exemption itself, the government is arguing that the exemption actually covers practically anything that so much as passes by the desk of the listed officials.

Thankfully, the policy statement got a recent reprieve from the Virginia Court of Appeals in Citizens for Fauquier County v. Town of Warrenton. Relying on the policy statement, the court sided with citizens, determining that the working papers and correspondence exemption covers only the mayor or the chief executive officer of a city or town but not both. The government in that case also tried to argue that it was entirely legit for the circuit court to allow the documents to be withheld after not looking at them and simply trusting the government’s summary. Sadly, the town has indicated it will try to appeal the decision to the Supreme Court of Virginia.

The policy statement made an appearance in Citizens for Fauquier because VFOIA doesn’t tell courts to defer to the government and presume they’re well-intentioned. The policy statement instead tells courts:

All public records and meetings shall be presumed open, unless an exemption is properly invoked.

An exemption isn’t presumed to apply simply because the government says so—the records are presumed open unless and until the government can show, not tell, that an exemption applies.

The policy statement resolves many problems, sometimes even before they start. The next time the government or a court complains about something being difficult to understand, perhaps they might need to go back the beginning. Courts certainly like to quote the policy statement as they introduce their decision, but some seem to be incapable of functionally using it.

Yet, as the law, the policy statement is required. A failure to use the policy statement as it tells us to is a failure to do VFOIA. Courts don’t get to quote the policy statement, then apply their own view of how things should be, and wax poetic about the intent of VFOIA’s drafters. They put their intent right up front.

But how else are we supposed to have and protect public access if not by literally saying it from the very beginning? The policy statement is the theme of VFOIA and its ultimate goal. It’s the ideal that the government is supposed to live up to and that courts are supposed to push for. The policy statement is the beginning, middle, and end. So, I’ll let those words close this out.

The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government.

Let's go the replay, folks

This FOIA Council meeting was fairly brief, but it did much to clarify where folks are coming from

Today, I’ll let the video speak for itself. I have thoughts on a few things (what a surprise), but for now, here’s a rundown of what you’ll hear in this hour-long meeting of the FOIA Council that was held on July 17, 2024.

02:14
After Delegate Marcus Simon, chair of the FOIA Council, gavels the meeting in and has members introduce themselves, he notes one member can’t attend electronically because of poor wifi and another can’t because of “technical issues.”

03:55
Staff reports on the first meeting of the workgroup on FOIA fees.

10:23
Conversation over the potential wrench that might be thrown into the study process if three members of the council attend the workgroup.

13:30
Simon asks that people from PETA join the fees study workgroup and explore the possibility of instances where fees are not uniformly applied.

17:35
Maria Everett (VCOG board president and former director of the FOIA Council) brings up the workgroup again and asks if it might make more sense to talk about the fees issue in a subcommittee setting, which would alleviate the quorum question when the workgroup membership is undefined.

19:29
Simon invites members to make suggestions about specific concerns or issues they have regarding FOIA or what they’d like the FOIA Council to do.

20:33
Everett brings up agenda issues, citing the Petersburg case where an item scrapping the RFP process and picking a casino developer was added to the agenda late in the meeting and immediately acted upon.

23:11
Deputy Counselor to the Governor, Lindsey Fisher (the former Speaker of the House’s citizen appointment), says she is concerned about “abuse of process,” noting an issue in a previous office where one person was making substantially the same FOIA request over and over.

27:40
Surry County Attorney, Lola Rodriguez Perkins, who is the official local government representative on the council, shares concerns that were brought to her by colleagues in the local government attorney world. She first brings up “abuse of process” issues.

29:51
Perkins says some colleagues would like to withhold records created after a closed session that are about the closed session, and some colleagues would like there to be prohibitions against board members talking publicly about what was said in closed session.

36:53
Perkins says some colleagues want response deadlines for FOIA and federal FERPA (student privacy) requests aligned, meaning responses to requests for educational records could be answered within 45 days (FERPA), not 5 (FOIA).

38:01
Perkins says some of her colleagues want limitations on FOIA during litigation, particularly for requests made by the parties after the deadline for discovery has passed.

39:33
Perkins says some want to expand the scope of the exemption that allows government to withhold contact information for people who’ve signed up for government alerts/messages/newsletters, etc. “This goes to the privacy of our citizens.”

41:21
Amigo Wade, Director of Legislative Services, raises the issue of the inconsistency in how legislatively created workgroups are set up. Are they subject to FOIA or not and if not, spell it out.

43:14
Chidi James, a partner at the law firm Blankingship & Keith, says exemptions should be reviewed and that maybe there are too many of them.

43:53
Simon shares James’ concerns, particularly in the area of law enforcement records, and also asks about revisiting what it means to grant discretion under FOIA.

47:03
Simon discusses beefing up enforcement of FOIA violations.

47:47
Simon says he’d like to review the working papers exemption.

48:35
Public comment period where I update the council on four FOIA cases pending at the Court of Appeals.

55:01
Meeting adjourned.

You too can make the simple sound complex

Over-the-top descriptions don't reflect well on the office

Here's how I started my day today:

Hit the snooze button. Got up 9 minutes later. Put on my watch, visited the loo and weighed myself. Walked to my desk and turned on my computer. Clicked on a few newspaper websites. Read articles, decided which ones I wanted, then copied and pasted them into a blank document. I repeated those steps until I sent the newsletter at 9 a.m.

However, if I worked for a certain city handling FOIA requests, this is how I might have described the above.

Renewed timing of soundwaves emanating from external source. After passage of 540 seconds, lifted cranium from prone position. Secured chronograph on upper extremity. Released fluid buildup. Calculated heaviness of exoskeleton, epidermis and critical internal controls. Ambulated to fixed structure under plastic, glass and metal box. Launched audio, visual and cyber controls. Used invisibly tethered pointing device to bring forth facsimiles of printed tabloid informational compositions. Engaged visual and neural connectivity receptors to ingest information and execute conscious decisionmaking functions to accept or reject appropriate content. Applied pressure to a command square and another square depicting the letter C, then applied similar pressure to the aforementioned command square and one depicting the letter V to a canvas devoid of typography. Replicated post-ambulation procedures to achieve final results and mass dissemination at 0900 hours.

That’s because that’s the same type of language this FOIA office inserted into two different messages to a FOIA requester.¹

If the intention was to make the FOIA process sound overwhelmingly complex, it failed. All that superfluous verbiage does is make the office sound unprepared. As in, the lady doth protest too much. Are they trying to convince the requester or themselves?

Pro tip: It is much more helpful to tell requesters about what should be a routine administrative process using simple, straightforward language.

1. And if you're wondering, the initial request for multiple documents over a several-month period was estimated at $467.82. After the requester narrowed his request down to ask for one specific record on one specific day, the estimate was knocked down to $223.30. And here’s how they conveyed that:

“Happy to update estimate with narrowed scope and provide an updated estimated advance cost determination for the requested refined undertaking, as provided for under the Virginia Freedom of Information Act, which would include making reasonable charges, not to exceed the actual cost incurred in accessing, duplicating, supplying, and searching for any responsive record/document. In conservatively estimating the undertaking for what would be required for thoroughly searching per the request spanning the provided timeline/members/staff during that duration, a conservative updated determination is $223.30, which, due to the potential amount of work required, the final cost could likely be greater, possibly lesser.”

Virginia remains an outlier

Too many public bodies in the Old Dominion show disdain for their fellow Americans

If you were reading my ramblings a decade ago, you would be forgiven if you’d grown weary of my constant harping about Virginia’s bat-s***-crazy citizens-only FOIA limitation. But it’s been a while. You’ve had time to heal. And I’ve had time to amass example after example of this limitation being used to thwart individuals, academics and reporters from gaining access to Virginia’s precious informational resources.

For the lucky few whose ears never bled from my diatribes, here’s a quick primer.

• Section 2.2-3704(A) of FOIA says, “…all public records shall be open to citizens of the Commonwealth.”

For reasons that still exceed my comprehension, public bodies around the state — local, state, higher ed, etc. — have taken this section to mean, “all public records shall be open to ONLY citizens of the Commonwealth.” That is, this statement gives them permission to deny a request simply because that requester wasn’t lucky enough to call the Commonwealth home.

Virginia is seriously out of step with the rest of the country on this. Like only 5 or 6 states have anything remotely similar. That prompted some out-of-state requesters to challenge the provision in court. They took the case all the way up to the U.S. Supreme Court in 2013, where in a total smackdown, all 9 justices said, “Yeah, y’all are fine.”

Mind you, they didn’t say the limitation was good or bad or mandatory or necessary. Well, actually, Chief Justice Roberts did say during the oral argument that the limitation was pointless (Hello, Aunt Betty, can you file this FOIA for me since you live in Bristol, Virginia, and I live in Bristol, Tennessee?). They just said the limitation wasn’t unconstitutional.

The pointlessness of this was brought home to me this week when a journalist from the Midwest wanted something from a state agency.¹ I warned her that she could get denied for being out of state, and sure as shooting, she got the message back that they weren’t going to process her request because she “didn’t meet the statutory requirements.”

So guess what this journalist is going to do? She’s going to call her Aunt Betty. Well, really her cousin. Her cousin who lives in Virginia is going to make the EXACT SAME REQUEST and this public body will have to answer it.

The public body didn’t GET anything from denying the first request. They will still have to do the work. They merely kicked the can down the road and bought themselves maybe a day or two.

Pointless.

For those public bodies that nonetheless embrace pointlessness, out-of-state requesters without a handy cousin, friend, colleague, or whatever have to rely on proxies. And then guess what I’ve seen a couple of public bodies do? They’ve denied the requests for being from proxies!

One locality did it when a reporter for a local TV station made the request on behalf of an out-of-state reporter with the same network who’d earlier been denied. Another locality did it because they could tell from the proxy service being used (MuckRock) that the underlying requester was from out of state.

Then there was the locality that wanted to deny a request made by a homeless person because they couldn’t verify that the scrap of sidewalk the person occupied was in Virginia.

What the …. ?

But those are only the runners-up in the chutzpah category of making it 100% clear that you’re OK with putting up barriers to your accountability. The winner in this category is not one, not two, but at least three public universities I’ve seen over the years that denied requests from out-of-state parents of students! Sure, we’ll take your tuition money, but we won’t give you records. Virginia-based parents can get information about the school, but not you, you Galling Granite Stater! You, Miscreant Michigander!

Speaking of Michigan, did you know that the water crisis that plagued the city of Flint for so long and cost so many people their health was in part uncovered by a researcher from Virginia Tech making FOIA requests? YAY, THAT GUY!

And so did you know that if the tables were turned, citizens of our state could be unknowingly drinking lead-tainted water because some Michigan State University researcher was denied critical information for being an outsider?

People who don’t live in this state have hundreds of different reasons why records in this state are important to them. Need examples?

• A Louisianan who owns property next door to a proposed sewage treatment plant in a Virginia locality.

• A Hoosier with a loved one in a nursing home who wants Virginia state inspection records.

• Someone living on the North Carolina side of Lake Gaston who owns a business on the Virginia side.

• A Navy officer in Florida who plans to return to her native Virginia upon retirement.

• A Connecticut reporter tracking down what happened in an accident that took the life of a beloved local figure.

• An academic doing nationwide research on ________ (anything, fill in the blank, but it’s not nationwide if you can’t get info from one state).

That pernicious provision still lurks in Virginia’s FOIA. An attempt in 2017 to remove it and replace it with a set of modified procedures for out-of-state requests was killed. Emboldened by the SCOTUS ruling, some states attempted to add their own citizens-only provisions, but their legislatures wisely resisted.

Luckily, based in part on FOIA Council advice, lots and lots of localities and state agencies fill out-of-state requests without batting an eyelash. YAY, THEM!

But far too many use those 11 words to deny records and information just because they can. Remember: it’s not a requirement, it’s just not unconstitutional.

Insistence on invoking this pointless limit only reflects poorly on the public bodies that use it.

1. The citizens-only provision makes exceptions for “representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth during the regular office hours of the custodian of records.”