Toward greater openness
Let this legislative session advance the cause of government transparency
If Virginians should have one wish for the General Assembly session set to convene on Wednesday, it’s that lawmakers use this opportunity to take a strong stance in defense of government transparency and the public’s right to know.
Though commonwealth law requires that most documents and meetings be available to citizens, there remain too many exceptions to that noble principle — and too many in elected office eager to exploit them. That can end if lawmakers take steps to strengthen Virginia’s Freedom of Information Act by narrowing its most-abused loopholes and adding legal consequences for willful or egregious violations.
It is little surprise that in the birthplace of Thomas Jefferson and James Madison, state law is unequivocal in its commitment to transparency in the public sector.
“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,” the preamble to the Virginia FOIA reads.
While allowing for officials to cite specific exemptions as to why documents should be withheld or meetings closed to the public, the law empowers citizens to play an active role in the governance of their commonwealth and their communities. It encourages oversight and accountability, and deters corruption and malfeasance.
The law is typically considered a tool for journalists, who frequently use FOIA requests to pry loose documents from government files and pull up the shades on public meetings to give citizens full view of the proceedings. But it’s more accurately a tool for citizens: Anyone with the time and, usually, a few dollars can file a request or challenge a ruling under its provisions.
That’s a critical distinction, especially when discussing potential legislative changes to FOIA. Every time lawmakers carve out a new exemption in FOIA, it tips the balance away from the public’s right to know what their government is doing on their behalf.
The legislature’s record in recent years is mixed. For instance, lawmakers passed a law in 2021 that narrowed an exemption regarding closed criminal investigation files, meaning the public would have greater access to them, only to reverse themselves a year later and effectively repeal it.
Most changes have been modest — a few words here, a minor tweak there — rather than tackling the most abused loopholes, such as the personnel exemption that some officials use to redact any personal information whatsoever from public documents.
Another is the so-called “working papers” exemption that shields the correspondences and notes for a host of public officials; the Youngkin administration used this in 2021 to conceal submissions to his teacher snitch line.
The Pilot and Daily Press joined a coalition of media groups in a 2022 lawsuit that produced a small portion of those submissions, a far cry from what Virginians deserved to know about the governor’s scheme.
It’s important to note that use of those exemptions is voluntary, not mandatory. Officials have the ability to make available nearly any record they choose rather than hide behind a legal loophole.
But lawmakers can change that, by adopting legislation that narrows those exemptions to foster greater openness. They could also add civil or criminal penalties for violations of the law’s provisions. Many other states, including Georgia, Colorado and Alaska, impose fines and even jail time on officials who fail to uphold the law
The Virginia Coalition for Open Government maintains a legislative tracker throughout the session for all FOIA-related bills at opengovva.org/vcog2024-legislative-bill-chart, which is a handy tool for citizens passionate about transparency in government to follow developments in Richmond and make their voices heard.
Strengthening FOIA to enable greater public access and accountability is something all Virginians, and their elected representatives in Richmond, should support. Let this be the year that lawmakers take action to make our government more transparent to those it means to serve.
Disclosure: Opinion Editor Brian Colligan serves on the Virginia Coalition for Open Government Board of Directors.