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.