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.”