For those of you out there who think FOIA is just a tool for the media to use to annoy public officials, I’ve got news for you: In this day and age access to information about not only what your government does but how it makes its decision can literally have life or death results.
Take last year’s collapse the I-35W bridge in Minnesota last year. As a result of the collapse many state governments, including Virginia, under pressure from the Department of Homeland Security, closed up access to previously available information on the structural safety of bridges in the state.
The argument was that having the information available, as it had been for many years, would have aided terrorists in planning attacks on the nation’s infrastructure. And yet closing up the information, I would argue, actually makes us less safe.
When the public is armed with information about the bridges they drive over every day, they can take action. They can contact their legislators and the media to pressure decisionmakers into putting the essential money into shoring up our bridges and other infrastructure. It has been reported that the governor of Minnesota actually vetoed transportation funding bills for two years before the collapse of the bridge.
Another example is the case of, Seung-Hui Cho, the man who perpetrated an unfathomable crime against Virginia Tech and the Tech community. Cho had a long history of mental problems prior to the day he perpetrated the worst school shooting in U.S. history. School after school passed him onto to the next level and did not share information on his clearly disturbing behavior. To this day most of those schools will not share information with the public for fear of violating the killer’s privacy.
Can someone explain how keeping someone’s mental illness and scholastic record private makes us safer? Wouldn’t it make more sense to open up the information and let us learn from the obvious mistakes that were made? Hiding information rarely results in its intended purpose, which one can only surmise is to somehow to protect the public from too much knowledge of how their government, or school system or any other taxpayer-funded body makes decisions.
The granddaddy of them all when it comes to open government is the apparent lack of communication between agencies of our own federal government that may have contributed to the most tragic event in U.S. history, the events of 9/11. There may be many reasons why one agency was not sharing information with another and on and on, but the end result is the same-hiding information only ends up causing more problems than it helps.
Perhaps the most important function that freedom of information brings us is in our very own lives. A lot of people think that FOIA is not important until they have occasion to need it. Everyday people contact the Coalition needing documents from their government for hundreds of different reasons. Many of them have gone through terrible ordeals simply because their own government was not willing to let them see documents that the greatly needed.
Maybe they need medical records for a recently adopted handicapped child; or a copy of their personnel file so they can understand why they lost their public-sector job or got turned down for a promotion; or maybe it’s a taxpayer who wants to know how and where their local school system spends 50% of their tax dollars. Whatever the reason, when people need FOIA, it can become the most important statute in the world, and yet before they have occasion to use it, so many in the government want to restrict our right to inspect and copy documents that should be open to the public.
Nothing breeds fear and distrust like government bodies acting in secret, and access to public documents are, along with open meetings, and the right to vote, the best tools the citizen’s of Virginia can arm themselves with to pressure for change when change is needed.
Not a good year legislative year for access advocates
The 2008 Virginia legislative session was not a good one for defenders of freedom of information. Bills that would have improved public access to information died. Bills that chipped away at Virginia’s FOI Act through small exemptions passed into law with little opposition from lawmakers. To make matters worse a couple of really bad access-damaging bills were passed into law.
And all of this was not for lack of effort by VCOG, the Press Association and other open records advocates. We testified dozens of times; we wrote numerous letters; we met with legislators and legislative aides to educate on the dangers of secrecy in the governmental process. The media tried to help by writing editorials on two of the most egregious pieces of legislation, but at times it felt like all this work fell on deaf ears.
The first blow to open government occurred just as the session began when House lawmakers voted to continue the practice of not recording subcommittee votes. Anyone who works with the Virginia General Assembly knows that the bulk of legislative work, and frankly legislative decisions are made at the subcommittee level. With other new rules in both the Senate and the House of Delegates, people were often only allowed to testify on bills in subcommittee.
Senators even went so far as to chastise a Virginia resident for daring to testify in full committee when, as the chairman put it, the time to fix problems with legislation is at the subcommittee level. And how easy is it for a member of the general public to know when subcommittee meetings are scheduled or what is on the agenda when these items are often not posted until the night before the hearing?
It was not all bad news. There were glimmers of hope here and there when individual legislators suddenly saw the wisdom of an open process and spoke of sunshine and transparency. Bills were amended by access advocates and made better for the citizens of Virginia as a result. Some bills died, one hopes because the patrons realized that they were a bad idea.
One of the most troublesome bills, from a FOIA perspective, was HB 1007 by Del. Dwight Jones, a bill that sought to amend FOIA and indefinitely make secret all documents in the possession of the Virginia Fusion Intelligence Center and any state agency that works with the center. In addition to amending FOIA the bill would have prohibited questioning of center employees by those who were accused of “criminal intelligence activities” and prohibited some legal recourse against any citizen who reported anyone to the center, no matter how unfounded the allegation.
The Virginia Press Association led the charge to make changes to the bill and with the support of VCOG were able to make significant headway in improving the legislation. While still not perfect the bill now will allow for release of some documents after a one-year period and no longer extends the prohibition on release to all state agencies.
But for every gain there seemed to be a loss. Another bill that VCOG did a tremendous amount of work on was HB 662 by Delegate Lynwood Lewis, which prohibits the release of all documents related to applications for multi-million dollar conservation tax credits. VCOG succeeded in getting an amendment offered by Sen. Edd Houck in the Senate Finance Committee (by a unanimous and bipartisan vote, I might add) that would have allowed the name of the applicant and a description of the location of the property to be releasable upon request. Since the Department of Taxation was arguing that the applications contained tax information (although they did not) VCOG only asked for information that was normally available to the public in land records after the award of the tax credit and transfer of the property to the Department of Conservation & Recreation. The reason we felt strongly that it should be available before the award of the credit was to provide some type of public oversight, however small, of the approval or denial of these large tax credits. Tax credits, mind you, which involve literally millions of dollars of taxpayer money. But in the end the bill went to conference and conferees stripped the bill of the Houck/VCOG amendment.
So much for transparency in the government process; let the state decide what to do with your tax money, why should you have a right to know?
Virginia has a good Freedom of Information law and VCOG is proud to have the honor of educating the public, legislators and others on the importance of this statutory right that the law gives to the citizens of Virginia. But now we have over a hundred exemptions to the FOI Act and if every year another dozen bills become law that chip away at the law, eventually it will be nothing but an administrative nightmare to follow for both public officials and more importantly for Virginia citizens who are seeking public documents from the very government that they elect and fund.
So the next time someone has a great idea to solve some issue by closing out the process and amending Virginia’s Freedom of Information Act with exemption number 150, please, on behalf of the citizens of the great state of Virginia, think again.
ACCESS BILLS TO WATCH AS OF FEBRUARY 15, 2008 Now that we have reached the midpoint of the Virginia Legislative Session and some bills have died a quiet death, these are the remaining bills that VCOG will continue to advocate in opposition or support. One note, the descriptions of the bills are mine, and are intended for clarity and not the actual legislative information system descriptions. Please contact your legislators to express your opinion of any or all of these bills. [Click here to learn who represents your district]
If you have any questions or would like more detailed information on any of the below, please contact Jennifer Perkins at jperkins@opengovva.org.
Thank you, Sincerely, Jennifer L. Perkins, Executive Director, VCOG
HB 1007 Virginia Fusion Intelligence Center D. Jones The bill provides that papers, evidence, information, etc., and databases or other information in the possession of the State Police related to criminal activity are confidential and not subject to the Virginia Freedom of Information Act or the Government Data Collection and Dissemination Practices Act. The bill restricts the release or dissemination of information without prior authorization from the Virginia Fusion Intelligence Center. An amendment to the bill stretches the provisions to cover all agencies assigned to the Fusion Intelligence Center.
VCOG Position: Strongly Opposed. This bill not only amends FOIA to exclude documents in an overbroad way but also raises other constitutional concerns.
Status: Passed House, referred to Senate Courts of Justice Criminal Sub-committee.
HB 407 and SB 130 Secret Donors to Public Universities in Virginia Oder / Houck The bill exempts records maintained by a public institution of higher education that are (i) personal fundraising strategies relating to identifiable donors or prospective donors or (ii) wealth assessments; estate, financial, or tax planning information; health-related information; employment, familial, or marital status information; electronic mail addresses, facsimile or telephone numbers; birth dates or Social Security numbers of identifiable donors or prospective donors. In addition the bill allows the identity of the donor to be secret if the donor has requested anonymity in connection with the donation. And a good amendment by VPA says: the provision provided by this subdivision shall not apply to protect from disclosure (i) the identities of sponsors providing grants to or contracting with the institution for the performance of research services or other work or (ii) the terms and conditions of such grants or contracts.
VCOG Position: Strongly Opposed. This bill sets a precedent for bad public policy and further erosion of FOIA by allowing for secret donations to a public entity. Secondly, it eliminates public oversight of possible relationship of donations to admittance of prospective students or to receiving lucrative contracts for services or products with the university.
Status: Each bill has passed its respective chamber and been referred to the opposite General Laws Committee.
HB 982 Access to Concealed Weapons Permit Holders Information Nutter As amended, the bill eliminates from public disclosure permittee names and descriptive information held by the Department of State Police for purposes of entry into the Virginia Criminal Information Network. However, the information would still be available to law-enforcement agencies, officers, agents in the course of law-enforcement duties, and any entity that has a valid contract to perform official duties for the law-enforcement agency. Non-identifying statistical information would be available to the general public. An amendment added on the floor of the House would remove local access at the circuit court level by making it discretionary with the court clerk as to whether or not to release the information.
VCOG Position: Strongly oppose amended version that would eliminate the public’s access to local information via the circuit courts on concealed weapons permitee holders. Would not oppose compromise bill that came out of the FOIA Council that closes access to the full State Police database but not at the local circuit court level.
Status: Senate bill has been re-committed and will be studied by the FOIA Council. House bill by Nutter is still alive and kicking and its fate is uncertain.
HB 662 DHC L. Lewis The bill includes as a confidential tax document any document that is required to be filed with the Department of Conservation and Recreation under the land preservation tax credit program. The credit information received by the DHC is for people applying for tax credits worth over $1 million.
VCOG Position: Opposed. This bill amends FOIA to close out information that it is not necessary to close. Sensitive tax documents and income-related documents can be withheld without a blanket exclusion that would include the name of the applicant and the property description. Land use issues are important at the local level, as is transparency to the operation of the program by the DHC. These tax credit applications are voluntary and are not at all like a tax return document that should be withheld. VCOG has asked for an amendment to the bill that would allow the name and property description to remain public. Thus far the amendment has not been accepted.
Status: Bill has passed the House and been referred to Senate Finance Committee.
HB 622/HB 1106 Circuit Court Clerks bill Stolle/Kilgore Clarifies a number of issues for circuit court clerks including: use of the last four digits of a Social Security number on judgments (filer is responsible); that the clerk may provide information from a locality to remote access users; filer is responsible for cover sheet accuracy; allowing the clerk to rely on the cover sheet to index; the difference between e-filing of court records and e-recording of land records. The bill also provides standard definitions of subscriber, secure remote access, public access, and electronic recording of land records. The bill establishes a $5 per document fee for e-recording of a land record and provides for a subscription rate not to exceed $50 per month for remote access to land records. The bill also increases various fees collected by clerks to generate revenue for deputy clerk salary increases.
VCOG Position: Not Opposed. We support the idea of standardizing the fees at a reasonable level rather than the current practice of some clerks charging very large fees for court documents and others not. There is some concern however that this bill would use those fee increases for raises for clerks. As a policy matter shouldn’t the salary increases for clerks who perform many functions in addition to providing documents, come from the full Virginia population via the budget rather than funding the raises on the backs of those who request documents?
Status: Each chamber has passed its bill, but House bill removed all fee increases in section 17.1-275. Senate subsequently put fees back in during a hearing in committee on 2/13 and reported the bill out of Senate Courts. The question remains if the House will pass the bill with the fee section intact.
SB 96/SB 246/HB499 Involuntary Commitment Hearings Lucas/Howell/Hamilton (As part of SB 246)The bill clarifies that recordings of any involuntary commitment hearing shall be held by the clerk of the general district court where the hearing is held, and that all recordings and records of such hearings shall be confidential, unless such confidentiality is waived, in a signed writing, by the subject of such a hearing. The bill provides that the dispositional order of such hearing may be made available by court order, if such disclosure is in the best interest of the subject of the hearing or the public.
VCOG Position: Opposed
Status: Passed by the Senate. All three bills have now been combined into a mental health omnibus bill.
HB 1332/SB 423 newly amended DEQ bill Landes/Puckett In committee substitutes passed by both chambers, the bill sets a process to provide for public hearings when there is substantial public interest in a Department of Environmental Quality-issued permit, there are significant legal or factual issues that are both germane to the draft permit and within the Department’s jurisdiction, and the public hearing could provide additional information. A newly added amendment in the nature of a substitute allows for public hearings to be held before less than a quorum of the DEQ board. The board could meet by electronic means with only one site being open to the public.
VCOG Position: Oppose unless amended. Would significantly erode progress on the careful tailoring of the use of electronic meetings versus in-person meetings done by the FOIA Council and requirements for same under FOIA. The bill needs to be amended to reflect current FOIA electronic meetings law & requirements.
Status: Passed House with substitute amendment; referred to Senate Agriculture, Conservations and Natural Resources Committee’s special Subcommittee on SB 423.
HB 634/SB132 [GDCDPA] Bill Reduces Government Overcollection of SSN’s. May/Houck The bill would require all local and state agencies to report why and where they collect Social Security numbers. It further provides that no agency shall require an individual to furnish a Social Security number unless (a) expressly authorized or required by law, AND (b) collection is essential for the performance of that agency’s duties.
VCOG Position: Strongly Support. For many years VCOG has advocated that there is an overcollection problem by state and local agencies that leads to documents being withheld that need not be. This bill would provide us with a report of all the places SSNs are collected; reduce the number collected; and increase access to public document and possible the cost of FOIA request (by reducing redaction) through reduction of this sensitive information.
Status: Each bill has passed its respective chambers and now heads to the opposite chambers General Laws committees.
Virginia Coalition for Open Government 540.353.8264 P.O. Box 1293, Warrenton VA 20186
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