A more open government
Still plenty of room to improve Virginia’s approach to transparency
If there is one aspect of governance that should enjoy broad support, regardless of party affiliation, it is the cause of transparency. Our elected and appointed representatives should, as an obligation of public service, champion the right of the people to have access to government records and meetings so they might be fully informed of decisions made on their behalf.
March 16 is National Freedom of Information Day and it coincides with the birthday of James Madison, an architect of the Constitution, author of the Bill of Rights and a committed advocate of open government.
“A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both,” Madison wrote in an 1822 letter. And one can only wonder how this proud son of the commonwealth might assess Virginia’s commitment to transparency today.
The state’s Freedom of Information Act declares boldly that, “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.”
However, the law continues to include more than 170 exemptions in which records can be concealed from view and meetings can be closed to citizens. Some are broad, some are narrow, but all afford officials an excuse to keep information from the public.
A few of these exemptions are notorious in Virginia for keeping residents in the dark.
The “personnel exemption” guards against the release of private, personal information — a good thing! — but is often abused to avoid even naming individuals who work in public service. A state Supreme Court ruling last year significantly narrowed the scope of that provision and Virginians should expect to see fewer redactions in the future when they request records.
Similarly, the “working papers” exemption intends to protect drafts, notes, private
correspondence and other documents that are for “personal or deliberative use” by a handful of elected and appointed officials. But this, too, is routinely abused by office holders of both parties when disclosure might be uncomfortable or embarrassing.
Important to remember here is that Virginia’s FOIA states that records are public and then lists exemptions by which they may be kept secret, but that is always an option, not a mandate. Record holders can always release information; it is a deliberate choice when they do not.
It is also a choice to charge exorbitant fees for fulfilling records requests under FOIA, an issue of increasing importance in the commonwealth. It’s reasonable for someone submitting a request to accept the cost for searching records and making copies. But when those fees balloon into thousands of dollars, it’s an impediment to transparency and serves as a warning to others that obtaining information is only for the well-heeled.
In a recent, and extreme, example, the attorney general’s office said a FOIA request filed by the Virginia NAACP about the AG’s “election integrity unit” would cost the group about $20,000. The final fee for the records was $9,500, which was slightly less absurd but still beyond the reach of an average citizen.
A bill delivered to the governor will require that such fees be clearly publicized by public agencies, but that’s a far cry from a cap on costs that would better protect citizen interest. Still, it was a positive change. Officials who use high costs to deter record requests, who refuse to comply as the law requires or who abuse FOIA exemptions still won’t face consequences since the law doesn’t include consequences for violations.
A more transparent government is more accountable to the people. Openness allows for scrutiny and oversight, and bolsters confidence in public decisions. James Madison understood this and, on his birthday, it would be refreshing for Virginia officials to acknowledge the same and to work to champion openness and the public’s right to know.