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The Fight for Sunlight

By Mike Signer | March 16, 2011 | 3 Comments

The Tea Partyers make a lot of noise trying to employ the Founding Fathers in their efforts to fight President Obama’s efforts to strengthen the economy and create a more prosperous society.  But the ideas of Madison and Jefferson can also help the rest of us work for openness, transparency, and reform.

A couple of days ago, we wrote about Sunlight Week here in Virginia and our Freedom of Information Act (FOIA).  While strong, some Virginia newspapers argue that our FOIA can still be improved.  There’s an interesting article by Abby Rogers at Virginia Statehouse News today proposing several specific improvements to Virginia’s Freedom of Information Act law.

The article observes that Virginia’s law is “probably among the better ones” in the country because it allows residents to get both documents and attend meetings, while other laws — such as the federal FOIA — only covers records, not meetings, he said.

However, Rogers highlights three potential improvements to Virginia’s law:

First, Virginia could give the Freedom of Information Advisory Council the authority to force an agency to give up records after a hearing, rather than requiring residents and newspapers to go to the courts if an agency refuses them.

Rogers quotes Winchester Star Managing Editor Maria Hileman as saying, “[I] don’t think Virginia’s law is strong enough.”

Hileman compares Virginia’s laws with those in Connecticut, where residents who are denied requested records can file a grievance with the Connecticut Freedom of Information Commission. If the commission decides there’s merit to the claim, it holds a hearing where the resident and the agency make their case.  The commission can then force the agency to give up the records, as well as fine the agency.  “So there’s actual teeth in the law,” Hileman says.

Virginia’s Freedom of Information Advisory Council is “very helpful,” according to Hileman.  But it only answers questions about access and issues advisory opinions.  It doesn’t have the authority to mediate disagreements—that’s up to the actual courts.  In court, a litigant against the government can collect court costs if they win, which is a strength of Virginia’s laws.

Second, Virginia could specify with more clarity how government agencies get to determine fees for the costs of collecting information for a FOIA.  Rogers quotes Megan Rhyne, the executive director for the Virginia Coalition for Open Government, saying that the fees can “vary wildly,” based on the agency that’s reproducing the record.  Hileman told Rogers that government agencies shouldn’t be able to charge “an arm and a leg” for requests.

Third, Rogers suggests that Virginia could clarify that email communications are FOIAble.  Remember when Sarah Palin, as governor of Alaska, used a Yahoo address to prevent her communications from being FOIA’d?  Rhyne also told Rogers the law should specify that e-mail be disclosed in Virginia.

You can see one example of a FOIA fight at this article about a father who fought for years to see high school visitor lists held by the Prince William County School Board.  The father had to get a writ of mandamus from a judge before getting the lists, spending almost $20,000 in legal fees in the process.

The dangers of FOIA reform are that it becomes a political football.  Ultraconservative Del. Bob Marshall (R-Prince William) got a law passed through both houses of the General Assembly to dramatically ratchet up fees for FOIA noncompliance—which is transparently designed to aid Attorney General Ken Cuccinelli in his crusade to sue a UVA professor whose climate research he personally disagrees with.

The bill has been widely praised by conservative organizations and seems designed for political rather than substantive goals. Indeed, Marshall said, “We simply cannot tolerate a situation like UVA.”

What do you think?  Is Virginia’s FOIA strong enough?  How to we prevent FOIA reform from becoming a political football?  NDP wants to know!

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3 Responses to The Fight for Sunlight

  1. Megan Rhyne says:

    Thanks for the article!

    A clarification, though:

    E-mail is already covered by FOIA. That’s been the case for a long time. It’s also been the case for a long time that e-mail sent from private computers or private e-mail accounts are nonetheless public records if they discuss public business.

    What I said to Abby is that I would like to see the law address when e-mail exchanges come to resemble MEETINGS. The Virginia Supreme Court has said that exchanges aren’t meetings unless they are exchanged simultaneously, like an IM chat, but we feel that some of these “reply all” exchanges over longer periods of time are like</i? meetings.

    Megan Rhyne
    Virginia Coalition for Open Government

  2. Mike Signer says:

    Megan: Thanks for this clarification and the additional information! That’s still an important move forward for the FOIA law in Virginia, given the increasing pace and variety of electronic communications, even exchanges over Twitter. Keep up the good work.



  3. [...] the Freedom of Information Act demands vigilance; we’ve written before about the need to continue to expand requirements for responsive action by government bodies in [...]

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