FOIA Council subcommittee curtain-raiser, II
The council's records subcommittee scheduled to meet June 16 at 3 p.m.
The FOIA Council’s subcommittees on records and meetings took a hiatus last year, with the chair taking the position that attendance at the workgroup the FOIA Council was to convene on FOIA request fees was optional for council members. Members Elizabeth Bennett-Parker, Maria Everett and Lola Perkins took turns attending — thanks, ladies — but the rest of the members were off the hook.
This year, those subcommittees are not only meeting, they both have very full plates.
Yesterday I talked about the meetings subcommittee. Today, I’ll discuss the agenda of the records subcommittee, which meets June 16 at 1 p.m.
If you can attend the meeting, it’s in the General Assembly Building, House Room B.
If you can’t attend the meeting but have time to watch it, use this link on the day-of.
If you have thoughts on any of these issues, share them with the FOIA Council subcommittee members: Maria Everett, Corrine Louden, Lola Perkins and Dwayne Yancey.
Vexatious Requesters
Curbing the so-called vexatious requester — the one who uses FOIA as a weapon to grind the gears of government to a halt — has been bubbling around the country for years. Virginia has grappled with the issue multiple times over the past 20 years, with some measures passing and others dying on the vine. Meanwhile, legislation in several other states has either been enacted (e.g., Tennessee) or proposed but defeated (e.g., New Mexico, Utah).
When we started talking about fees last year at the FOIA Council, the topic of vexatious requesters came up, and it was suggested we create a best practices document that coaches requesters to make better requests.
Burdensome or harassing requests may not be anything new, but what really set off the recent proliferation of legislative proposals was the 2020 election. For four straight years, activists bombarded election offices with multiple, massive and duplicative requests, making it harder and harder for folks working in these offices to do the actual business of putting on other elections (and, you know, in Virginia, we have elections of some sort more or less twice a year).
I have some sympathy for the plight of these offices. In fact, I wasn’t immune to the problem, as I would occasionally receive a request from someone who thought I might have the records or would file the request on their behalf.1 There were two legislative attempts at helping out election officials that were eventually abandoned by their Republican (2022) and Democratic (2023) sponsors.
But the problem persisted, and at least one legislator told me that he would not consider my unrelated legislative proposals for 2025 until I “fixed” the problem of these abusive requesters.
Meanwhile, at a FOIA Council meeting last year, two council members expressed interest in dealing with these vexatious requesters, which is why, I assume, it’s on the docket now.
When government folks have engaged me on this issue in the past, I tell them I believe them when they say they have to deal with some real pills. I know because those pills usually call me somewhere along the way, and when they do, I try to remind them to narrow their requests as much as possible and, more than anything, be nice!
But, what I often hear from the government folks is that they are not taking full advantage of the tools at hand. Exemptions, overdue bills, petitioning the courts, charging (fairly) for the records. All of these serve as checks on runaway requests.
Are there other checks we could implement? Maybe there are. But most of the ones that have been proposed over the years get into the thorny business of categorizing requests or requesters into good and bad, or else they wade into the arbitrary territory of how many FOIA requests is too many.
FOIA is supposed to be neutral. It isn’t supposed to look into who you are, why you want the records, or what you want to do with them. It’s why I don’t advocate for a “public interest” waiver for fees or requests: because FOIA’s not just about the public interest in broad strokes; it’s also about the proposal for a new road that is going to personally impact someone’s property, or the video showing the incident where your kid was hurt on the bus, or the elimination of a government service that your business has been providing through a contract.
Are any of those requests better than the ones that ask for spreadsheets of suspension rates for high school seniors, or campaign finance reports for state elected officials? They all have value, so I wince when I hear people talk about good or bad requests.
Limiting the number of requests that can be made undermines reporters who are working on multiple stories and who may need follow-up information on any one of them. It also interferes with citizens who start out interested in one thing but who then want to learn more. Lee Albright’s request to DGIF to find out why the local fish hatchery closed eventually led to the realignment of the DGIF board amid an overspending scandal.
Repetitive requests for the same information can be dealt with by giving some version of “asked and answered” to each subsequent request.
But ultimately, that intent part is so, so tricky. Maybe they actually come right out and say it, but like the lust in Jimmy Carter’s heart, how do you prove that someone intends to make life harder for government if they don’t admit it?
Definition of “Personal Information”
The phrase “personal information” is used several times throughout FOIA, but it’s not defined generally. There’s a definition for “personal contact information” in the exemption found at §2.2-3705.1(10) that includes “home or business (i) address, (ii) email address, or (iii) telephone number or comparable number assigned to any other electronic communication device.”
The Government Data Collection and Dissemination Practices Act, which governs how government collects and maintains information about individuals, includes a lengthy definition:
"Personal information" means all information that (i) describes, locates or indexes anything about an individual including, but not limited to, his social security number, driver's license number, agency-issued identification number, student identification number, real or personal property holdings derived from tax returns, and his education, financial transactions, medical history, ancestry, religion, political ideology, criminal or employment record, or (ii) affords a basis for inferring personal characteristics, such as finger and voice prints, photographs, or things done by or to such individual; and the record of his presence, registration, or membership in an organization or activity, or admission to an institution. "Personal information" shall not include routine information maintained for the purpose of internal office administration whose use could not be such as to affect adversely any data subject nor does the term include real estate assessment information.
There is a desire by many to come up with a workable definition for FOIA to at least provide some consistency and to separate out what information might need protection from disclosure and what information might not. Social security numbers, biometric data, yes, that makes sense. Names and addresses, less so.
Context matters here. The exemption cited above — which would allow addresses and phone numbers to be redacted — applies to times when individuals have signed up to receive government information, like Christmas tree removal, hurricane preparedness or computer recycling. People shouldn’t have to give up their contact information just to stay informed.
On the other hand, if we’re talking about, say, licenses, names and addresses help protect the public when they employ or engage someone.
I’m not against a definition. I’m not really for a definition, though, either. The devil will be in the details and I’ll keep my eye out for what develops.
Minors in State Apprenticeship Programs
A bill was referred to the FOIA Council in 2025 (it’s a repeat bill from 2024 that somehow didn’t get in front of the council last year) about the “personal information” of minors who are participating in a state-run apprenticeship program. Discussion about the bill in March is one of the things that prompted the more general discussion about personal information noted above.
Without a definition of “personal information,” there’s a chance this proposed exemption could capture details that would serve as a check against state agencies granting opportunities to their friends and families. But we also tend to protect the identities of minors, so this may be a matter of tightening up the language or the exemption itself, or it might be a case where a general definition of personal information might do the trick.
The National FOI Coalition website — which I administer — almost shut down in 2023 when Mike Lindell told his followers to go to the site to look up info on public records requests in their state. That was when I also got an email at NFOIC from someone who said he’d recently moved from “Commiesota.”
