The Good, the Bad and the Ugly of Virginia’s Freedom of Information Act: A Citizen Experiment
It was supposed to be a banner year for Virginia’s citizens. Three years prior, the Virginia General Assembly directed the Virginia Freedom of Information Advisory Council to undergo a study of the Commonwealth’s sunshine law and its vast exemptions which serve to keep certain records from public eyes.
2017 wasn’t all it was cracked up to be. The Council’s three years of work resulted in the legislative adoption of two omnibus bills (HB 1540 & HB 1539) that sought to capture a variety of changes to the law. The results were lambasted by open government advocates for not going far enough. Not surprisingly, many of these voices (two examples, here and here), represented journalists who regularly use FOIA as a tool to understand what takes place in government and report it to their readers. Skilled journalists often find pressure points to get their hands on what they want; but what of citizens?
How easy or hard is it for average Virginia citizens to access records they have a legal right to? That was the question me and nineteen students in the State and Local Government class I teach at Christopher Newport University sought to answer. In recognition of Sunshine Week, each student selected a state or local agency in Virginia and used FOIA to request a record of interest. In summary, there was an overall positive experience for these young citizens, but there were still some problems.
Here’s what we found:
By and large, the students experienced professional, courteous, and timely responses in their interactions with FOIA officers in Virginia. Most of the records requested were basic in nature (i.e. budget-related), so generally transparent and easy to track down. If the officers had quick access to the records requested, they readily provided them (such as when Fairfax Water completed one student’s request the very same day).
When one student asked for budget records and the amount of grant spending for the Virginia Commission for the Arts, Executive Director (and former Virginia Delegate) Margaret Vanderhye took an educator’s approach to the request. Vanderhye went beyond simple compliance when she provided the requested documents and also gave an explanation of their contents and implications of a recent gubernatorial action. She even provided a press release that addressed the future Commission budget.
Not one of the agencies levied fees to offset the cost of searching for and supplying the records, which is allowed under the law; therefore, none of the students came out-of-pocket in order to get their hands on the records they were seeking. Not charging students, who likely don’t have much disposable income, was a positive and bodes well for less affluent citizens who may find the need to use FOIA.
But not everything went smoothly.
In two cases, an agency was unresponsive. In the first case, a student had been in communication with an officer in the City of Newport News Police Department on the topic of underage drinking-related arrest records. The officer, who was initially responsive by email, went dark once the request had been narrowed and it came time to produce the records.
Another student used the Virginia Department of Elections FOIA email address to request candidate forms for Delegate David Yancey and did not receive even a courtesy acknowledgment of the email request by the department in the first five days after its sending.
Two students were asked for their home address before the agency (Virginia Department of Transportation and Christopher Newport University) would agree to provide the requested records. We can infer that, had the students been “out-of-staters,” the agencies would have denied their requests on those grounds. While confirming Virginia residency is a valid legal response — upheld by none other than the U.S. Supreme Court — it’s a posture that has been criticized as anti-transparency.
When one student asked for a copy of the most recent contract the Virginia Department of Agriculture and Consumer Services (VDACS) had with a company to conduct testing on animals, she was told in a follow-up by phone that she could not ask for information that way — that she needed to ask for a contract between the agency and a specific company. In other words, the agency wasn’t going to help her find what she was looking for. The law does not require the level of specificity demanded by VDACS.
A 2016 law, the result of House Bill 818, required all Virginia agencies subject to FOIA to identify a FOIA officer and required them to receive annual training. Kudos(!) to the public servants my students encountered who took their FOIA responsibilities seriously and made it easy to access records these students had a legal right to. Most FOIA officials seemed well-trained: Did House Bill 818 have anything to do with that?
Not to take anything away from those who did their job, but I suspect things would have gotten dicey had my students’ requests been more “controversial.” Would students have received the same courtesies and records free of charge if, say, they asked for out-of-state travel documentation of agency executives? Sometimes agencies weaponize the costs of supplying records to citizens. When the Peninsula Airport Commission was asked by a citizen (and former contractor) for records relating to a loan agreement for a defunct airline — a subject matter the authority clearly didn’t want publicized — they charged the requester $3,370.
In the wake of the 2017 General Assembly Session, Virginia’s media outlets were right to call for additional seats on Virginia’s Freedom of Information Advisory Council. The composition of this body should be diversified to ensure the public’s interest isn’t drowned out by legislators and lobbyists whose tendencies serve to protect entrenched political and business interests. But it’s not only journalists whose experiences with FOIA the Commonwealth would benefit from hearing more of. The Council should incorporate the voices of more average Virginia citizens — I know of at least 19 students who would raise their hands for that assignment.
