(though it says above that this was written by Megan Rhyne, it wasn't. It was written by VCOG Executive Director Jennifer Perkins, but thanks to a Web-updating quirk, Megan's name was inadvertently added.)
The 2008 Virginia General Assembly session has started out with a bang. By my count, there are at least 60 bills to fight, amend and track for changes. It's going to be a busy season for access advocates. See our list of bills we are tracking this year.
So far we have fared well in that no bills on the list of most FOIA watchers has yet passed into law, but it’s still early and the opportunities still numerous for the General Assembly to create hardship for citizens of Virginia who want to know what their government is doing for and to them.
Some of the most egregious anti-access offenders that bear mentioning are:
the well-publicized University of Virginia secret-donor legislation (HB407/SB130);
a similar bill that would allow for secret donations to public museums (HB858/SB647) (see any pattern here);
HB1020 which allows for study committees of the General Assembly to conduct meetings without a physical quorum present; and
HB 1007 the aptly named bill that tells you Big Brother is watching you. The bill would, no kidding, make confidential and exempt from a FOIA information gathered in a basement room in Richmond that it deems is "criminal intelligence information." In addition the bill allows anyone who makes a charge against you, however unfounded, immune from any lawsuit for defamation or negligence.
On the other hand, those that deserve honorable mention and a gold star include:
SB342, which would require the purchaser of a state toll facility to conduct all meetings as open meetings. For those of you in Northern Virginia at the mercy of the Dulles toll operators who claim to not have to abide by Virginia's FOIA, this is a necessary bill;
SB8, which would allow voters to vote absentee in person for any reason;
HB799, which requires the State Board of Elections to mail a voter guide to all registered voters in advance of the November general election with information on pending constitutional amendments, statewide referenda and candidates for statewide or General Assembly office; and
HB 313, which removes the working papers exemption for the CEO or President of any public institution of higher education.
Also worth mentioning is HB1271, which in its original form, among other things, would have allowed public bodies to exempt information on technology franchisees. In these times of cities, counties and even entire states entering getting into the business of technology its important for taxpayers to know who their local governments are doing business with and entering into big money contracts.
The good news is that Del. Ebbin has agreed to an amendment that would make the exclusion not apply to any bidder, applicant or franchisee that is owned or controlled by a public body.
Another bill giving the Coalition heartburn is HB662, which would extend a prohibition against release currently enjoyed by the Department of Taxation for applications for conservation tax credits to the Department of Conservation & Recreation. The Department wants to "prohibit the dissemination of any document containing information on transactions, property, income or business of any person or corporation that is required to be filed under section 58,1-512" (the conservation tax credits section).
These tax credits represent huge amounts of lost tax- payer revenue in that they are worth 40% of the fair market value of the property. The DHC actually gets involved with properties when the credit is worth over $1 million. While land conservation may be a worthy cause, that doesn't mean it’s above public scrutiny.
The proponents feel that since the Department Of Taxation has the exemption, they should too, and apparently they have had commercial requests for the information and they feel they are not asking for anything new to be exempt. In response it seems that adding one bad law to another bad law is not the answer. VCOG staff has apprised DHC of its concerns and suggested several amendments, but none have been accepted thus far.
So to sum up, if you'll forgive the sunshine reference, it's partly cloudy in Richmond with a few rays of sunshine peeking through but rain clouds could be coming in at any time.
I never thought of Pennsylvania as a particularly nutty place. You can’t get much more sober and sane than Philly’s Main Line neighborhoods, Pittsburgh’s serious steel making and the Amish, for heaven’s sake.
But the people running the state’s elections, bolstered by equally nutty folks at the state police, Emergency Management Agency and the state Office of Homeland Security, have lost their marbles!
As reported in USAToday, “state officials have decided not to publicize their list of polling places in Pennsylvania, citing concerns that terrorists could disrupt elections in the commonwealth.”
The officials noted that terrorists bombed Madrid commuter trains shortly before Spain’s national election in 2004.
So the logic goes like this: because a transportation hub in a major European capital city was bombed three years ago (probably by al-Qaeda, but no one claimed responsibility) before a national election, then Earl Smoot, formerly of Palmerton, Penn., but who has now moved to Sewickley, cannot have a list of where, in his new hometown, people will be going to vote for statewide and local elections.
Or is this the logic? Because of possible -- not probable and not threatened -- terrorist attack, citizens in the home state of the Continental Congress and the Liberty Bell cannot easily learn where to vote.
But wait! The election officials have a solution! We won’t give you a list of polling places, but you can go to our Web site! Or, if you don’t have Internet access, you can call your local election bureaus!
Usually, we see government officials wanting to keep information OFF of Web sites, for fear that some terrorist in Afghanistan is jammy-surfing for future targets.
VCOG frequently has to make the argument that electronic records should be treated the same way as paper records. In Pennsylvania, access advocates will have to argue the opposite.
One such activist (OK, she’s a consultant for political campaigns and non-profit groups) is thinking of challenging the decision, noting that lists are used to help candidates coordinate get-out-the-vote efforts. Not to mention the last-minute campaigning done by volunteers at every polling location.
And as for calling the local election bureaus, is that really going to solve the problem, as the officials have defined it? “Hello, my name is Osama bin-Laden, oh, I mean Earl Smoot. Can you tell me the voting locations in Sewickley?
Or, if bin-Laden isn’t posing as Earl Smoot, maybe Earl Smoot is an al-Qaedea sympathizer. “Yo, Osama, you’ll never guess what great piece of information I have for you.” (Followed quickly by… “Well, thanks, Earl, but we got this same information from the state Web site.”)
Or what if Earl Smoot is a ticking time bomb as was Charles Chad Roberts, who shot nearly a dozen students in an Amish schoolhouse last fall?
I hate to sound insensitive to concerns for public safety, but it’s nothing short of appalling that THE most basic form of participation in democratic government is being sacrificed on the altar of fighting terrorists. Keeping polling locations under wraps is not going to stop any terrorist hell-bent on destroying American lives. A terrorist doesn’t need to know if citizens are using the local high school as a polling place to wreak havoc: the terrorist would create far more destruction blowing up a local high, bridge, bus terminal or train station (that’s what happened in Madrid).
Keeping these lists pseudo-confidential will not make people safer, but it will keep some citizens in Pennsylvania in the dark and unable to exercise one of the true hallmarks of America: the right to vote.
Megan
p.s. In Virginia, according to Rosanna Bencoach of the State Board of Elections: “If anyone asks for it, we provide either a printout or electronic version, as requested. No one's requested one in awhile. The full list of polling places will be put up on the website before election day.”
Over the weekend, the Roanoke Times reported that the Salem City Council took an expensive retreat to a West Virginia resort to talk city business in more comfortable climes.
Out-of-town retreats are nothing new. Though not particularly public-friendly to begin with, at least most local governments who favor these jaunts keep them close by or at least in-state. But a West Virginia resort?
What's worse, though, is the way the council did it. At the end of a regularly scheduled meeting, the council called a recess. A 4-day recess. The council announced at the time that the meeting would resume at the West Virginia resort, but many meeting attendees had already left, and there was no other public notice that the council would be taking up the rest of the agenda in another state, amid facials, golf and expensive dinners, even though the retreat had been planned since February, according to the city manager.
It's all perfectly legal, according to FOI Advisory Council Exec. Dir. Maria Everett. There's no requirement that notice be provided to the public when a meeting is going back into session after a recess. But let's be serious: Most of us think of a recess as a let's-go-stretch-our-legs kind of thing. Let citizens and their elected representatives mingle, maybe they need a cooling-off period. Maybe they need a bathroom break. But what they don't need is four days off so they can sneak off to another state to finish the public's business.
Of course, the city council members would bristle at the notion that they snuck off, since, as mentioned, FOIA allows this kind of circumvention. But Everett and others -- like the Roanoke Times' Shanna Flowers -- have it right when they say it sure doesn't look good.
We've heard similar complaints from a citizen about the Cumberland County Board of Supervisors. And there are probably more we don't hear of.
My question is WHY? What good could possibly come from deliberately distorting the notice requirements of FOIA? Even if there's absolutely no impropriety intended, it looks TERRIBLE. Citizens and the press rightly feel cut out of the process and suspicions are immediately aroused.
So here's a notion: If you must retreat, then retreat. But be honest about it. Don't hide behind a "recess" to get around letting the public -- all of the public, not just the ones at the meeting -- know what you're doing and when. It's basic common courtesy, and it's basic democratic government.
Virginia Coalition for Open Government 540.353.8264 P.O. Box 1293, Warrenton VA 20186
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