A FOIA story
I don’t usually repost full copies of news stories, but this one is especially noteworthy as a snapshot of how FOIA transactions can unspool. This is a reporter trying to get a state agency report, but the same back and forth, same push and pull, can be experienced by requesters at all levels of government and all corners of the state. Even when the law or an exemption is used correctly, it is still often difficult to follow the process and understand why confidentiality is needed when it isn’t mandated.
From the Daily Press (story may be blocked by a paywall)
Inspector General reverses on Jamycheal Mitchell file: A Virginia FOIA story
by Travis Fain
Last month, during the final meeting of a state subcommittee's nearly three-year review of Virginia's open records law, administrators from the state auditor's office, the Joint Legislative Audit and Review Commission and the Office of the State Inspector General made a suggestion.
Could we tweak, they asked, the Freedom of Information Act language that covers our organizations?
Among other things, their proposed new language would drop the word "investigative" from the phrase "investigative notes," seemingly broadening the sort of notes that could be protected from public release.
These entities, their administrators said, don't always perform investigations, throwing into question just what notes are exempt. Often they do audits, they said. Or reviews. Inquiries, perhaps.
The subcommittee rejected the change.
Outside the hearing room, State Inspector General June Jennings and Staci Henshaw, who represented the Auditor of Public Accounts in this meeting, both said the change wasn't a major priority. A FOIA Council attorney had called, mentioned the ongoing review and asked whether they had suggestions.
Sure, they told him.
After the meeting, both struggled to name documents their offices had had to release because of the law's current wording. Henshaw said staffers' electronic calendars had been released in the past. Jennings said she'd have to get back to the Daily Press with examples.
The most prominent inspector general's report of late is its review of Jamycheal Mitchell's death. This is the young man who died at Hampton Roads Regional Jail three months after he was arrested for shoplifting $5 worth of junk food. Mitchell's death, and others, led to the jail superintendent's early retirement, a $60 million federal lawsuit and Attorney General Mark Herring's recent call for a federal investigation at the jail.
The state inspector general's report on Mitchell's death was roundly criticized, with legislators questioning its depth and OSIG insiders filing a complaint over process that was eventually set aside by Gov. Terry McAuliffe's office, which said the governor retained full confidence in Jennings.
Might the Daily Press review the notes and interviews and other documentation that led to that report? Yes, Jennings replied, standing outside the FOIA subcommittee meeting room a little more than a week ago. Parts would likely be redacted, but yes.
"We don't have any problem releasing case files once an investigation or audit is complete," she said.
Back inside the committee room, the meeting continued. As it ended, OSIG spokeswoman Julie Grimes approached.
Jennings, she said, may have been mistaken when she said the Mitchell file would be available.
Governor backs OSIG in complaint over Jamycheal Mitchell's death
The Daily Press sent a formal request anyway, later that day. A week later came the formal answer: No.
Grimes cited the code section that her boss and the two state auditing arms had sought to change.
To be clear, that section certainly seems to allow this. Whatever defects the code language may have, its intent seems clear: These records are exempt from mandatory release, but may be released if the inspector general chooses.
Insiders call for investigation into state Inspector General over Jamycheal Mitchell's death
Most of the Virginia Freedom of Information Act's 100-plus exemptions are written this way, allowing government officials to release documents, but not requiring them to. Officials often decline. Sometimes they claim the law prohibits them from releasing documents, when it clearly does not.
As for OSIG's review of Mitchell's death, it was pretty clearly an investigation. The report's title is: "Investigation Of Critical Incident At Hampton Roads Regional Jail," and it's available online at osig.virginia.gov/reports.
Of course, there is a note at the bottom of that Web page that says, "investigative reports are not published on the OSIG website due to the sensitive nature of investigative reports," but Grimes said the office simply decided to make this particular investigative report public.
Mental Illness in Area Jails
As for OSIG's initial willingness to release the case file, and its subsequent denial, Grimes said she is the office's designated FOIA officer. It was up to her, not Jennings, she said, to check whether exemptions applied.
Grimes went on to say that, because mental health services were involved in this case, federal privacy laws come into play. She pointed to a still-pending state police investigation at the jail, the potential of a U.S. Department of Justice review and the Mitchell family's $60 million lawsuit.
Hampton Roads Regional Jail: By default, Virginia's largest mental hospital
"OSIG is exercising its right to withhold the records, and in doing so, avoid compromising these current activities," Grimes said via email.
Marisa Porto, publisher and editor-in-chief of the Daily Press, is also a member of the Freedom of Information Council subcommittee handling the FOIA exemptions review. She has been frustrated, she said, by an officialdom that leans "toward government needs and government wants, and not toward the citizens' right to know."
Death of Newport News inmate at regional jail sparks outrage, call for investigation
Earlier in the council's review, a state homeland security official asked for an expanded records exemption without providing examples of records currently unprotected, Porto said. The Virginia Department of Alcoholic Beverage Control sought an exemption last year for a marketing plan that doesn't yet exist, but might some time after 2018, when the ABC goes from being a state department to a state authority.
Why a state-run liquor monopoly needs a secret plan to sell more booze wasn't entirely clear.
Another top officer retires from Hampton Roads Regional Jail
It seems a number of government administrators want "a bigger better exemption," whether they need it or not, Porto said. In fact, efforts throughout this review of Virginia's Freedom of Information Act, to tighten exemptions and release more records, or to open more government meetings, lost momentum in the face of officials fighting either for the status quo or seeking expansions that are "convenient and expedient for them," Porto said.
"And isn't that a shame," she said, "for a state that considers itself as the birthplace of American ideals?"
Fain can be reached by phone at 757-525-1759.