Citizens = government?

Not really what we had in mind when when the FOIA Council launched in 2000

If you're concerned about the state of FOIA in the state (and you should be), the first place to start is the FOIA Council.

The FOIA Council is where a lot of proposals to "fix" FOIA start. Council committees and stakeholders study issues throughout the year and they recommend proposals.

Oftentimes, these proposals are citizen-friendly, but just as often (if not more), the fix is to make it easier for government to operate away from the prying eyes of the public.

My predecessor, Frosty Landon, brought in folks from the NY, CT and IN offices to testify to a study committee in 1999 about what a FOIA office could look like. We wanted a place that would answer questions about FOIA from ANYone.

At the time (and currently), only certain public officials could ask the AG for an opinion, but not the public or press. Even if the AG's answers were pro-citizen, that still left a lot of people wondering what FOIA did and didn't say.

Anyway, the council's day-to-day operations are handled by an executive director. Many of you will remember that Maria Everett held the position for 17 years, from the council’s start in 2000. Maria's now on VCOG's board of directors.

Since Maria retired, her #2 in command, Alan Gernhardt, took over. Alan's got his own #2 in command now, Joe Underwood, but the office is still understaffed and overburdened. It gets tasked with doing more and more each year. I've got a ton of respect for everyone who has worked in that office, even when I haven’t agree with their interpretation of the law.

But, then there is the council itself. Members to the council are designated according to statute. There used to be just two legislative members, now there are four: two delegates, two senators.

The enabling statute also says the Librarian of Virginia and the director of the Division of Legislative Services are to be members, plus a designee from the Attorney General's office. The House gets to appoint 3 "citizen" members, one of whom is to be from the press. The Senate gets to appoint someone from local government and a "citizen" member. And the governor gets 2 "citizen" appointments, "one of whom shall not be a state employee."

So, perhaps it was naive, but when the enabling statute was written, we were thinking "citizen" meant something like someone not already represented on the council, or at least, not a stacked deck of those connected to government. But guess what? That's where we are.

Currently, besides the designated local-government seat, two “citizen” members are lawyers at firms that represent lots of local governments and school districts. One “citizen” member is with the Office of Inspector General. And...(this is my favorite), one “citizen” member is deputy counsel to the governor.

Now, LET ME BE CLEAR: I have NOTHING against any of these individuals. They are all honorable, qualified, professional, competent, engaged. This is not about them as individuals.

But just look at that makeup! In the federal world, I think this is what they call regulatory capture. With the exception of the two press members (one of whom rotates off July1), every other member has an interest in protecting government information.

Missing? CITIZENS. Real, honest-to-goodness citizens who care about transparency in government, who use FOIA. People who can share what it's really like to ask state and local government bodies for records or to attend public meetings.

Luckily, Maria Everett will rotate onto the council in July, and she'll check that citizen box. But it’s a shame that she’s the only one. Instead, balancing out the state and local government representatives, we should have more citizens from the advocacy world, the business world, the non-government attorney world, the media world.

It’s hard to imagine citizen-forward proposals coming out of the FOIA Council when citizens are not part of the process. It’s not impossible, but it is harder, and I think we can do better.