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Ongoing Stories / Editorials
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Officials thumb nose at your right to know |
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Editorial, Washington DC Examiner 6.23.06
Virginia
and Maryland have freedom of information laws guaranteeing residents’
right to see documents and data held by the governments of Fairfax and
Montgomery counties. Both states’ laws affirm in glowing rhetoric the
importance of your right to see such documents and data, subject only
to reasonable restrictions to protect things like ongoing criminal
investigations.
So why do officials in both counties
play games when asked to make some of the most important of those
documents and data available for citizens to review? This question is
especially perplexing because these officials were asked for
compensation and related data for employees of the two counties’
governments.Since there is no question but that the laws in both
states explicitly state that such data are public records, it is
especially troubling to encounter resistance. Knowing which public
employees are paid how much is the first, most basic requirement for
interested citizens seeking to assess the performance of local
officials. The games played by Fairfax County Director of
Public Affairs Merni Fitzgerald are especially notable. The Examiner
requested salary, overtime, bonuses, amount of tax-paid retirement
benefits for the year and amount of tax-paid health insurance coverage
for all Fairfax County government employees. The newspaper also
requested ethnic and demographic data for each employee. Fitzgerald
initially balked at providing anything other than base salary, title
and names, claiming the rest of the requested data are personnel
records and therefore are not releasable. After much discussion,
Fitzgerald produced only name, salary and title for the 11,000-plus
Fairfax County government workforce who make more than $10,000
annually. After some further dickering back and forth, Fitzgerald
provided summary data in response to our request for detailed
information on the ethnicity and demographic characteristics of each
individual employee.
Why
is it important that taxpayers know how much public employees are paid,
including how much they receive in perks? Without such information, it
is impossible to know independently of official claims, for example, if
employees or their supervisors are abusing overtime, as was discovered
to be the case some years ago by The Fairfax Journal. Without
such information, it is impossible to know independently if county
government’s total compensation practices are too low, too high or
right on target in order to assure Fairfax residents the highest
quality service. And without the ethnic and demographic information, it
is impossible to know independently if minority employees are being
compensated or promoted fairly. But at least Fitzgerald did
something. Montgomery County Executive Doug Duncan’s office didn’t even
acknowledge receipt of The Examiner’s request for the same data for
Maryland’s most populous and prosperous jurisdiction. This is
not the end of this saga, however, indeed far from it. The Examiner
will pursue such cases as far as necessary because we believe taxpayers
— you, the public — have the right to know how your business is being
conducted at all levels of government. Stay tuned. |
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General Assembly salutes us |
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State Brief
Richmond Times-Dispatch
June 13, 2006
The Virginia Coalition for Open Government received a pat on the back Monday for its efforts to assure access to public meetings and records.
The state's Freedom of Information Advisory Council presented the Roanoke-based group a General Assembly resolution commending the10-year-old coalition for its work for openness in state and local government.
"In many legislatures," quipped coalition Executive Director Frosty Landon, "resolutions commending open-government legislation would not be approved."
The Coalition for Open Government is a non-partisan alliance of journalists, librarians, public-interest organizations and members of the public.
The joint legislative resolution also congratulated the group for pushing the creation of the state's FOI Advisory Council, which helps state and local governments comply with Virginia's Freedom of Information Act.
The Richmond Times-Dispatch is a member of the coalition, and its parent firm, Media General Inc., is a contributor. |
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Kaine signs '3P' compromise |
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Compromise reached in '3 P' disclosure rules
The General Assembly approved a temporary FOIA exemption sought by Gov. Kaine and the Department of Transportation. The new language applies only to public/private transportation partnerships, and will expire in one year unless agreement can be reached on a permanent exemption. Left unchanged was the earlier language (Senate Bill 76) requiring more disclosure of other public/private partnerships.
VDOT's proposals will be studied by the Virginia Freedom of Information Advisory Council in the coming year -- giving all interested parties more time to try to craft permanent legislation acceptable to everyone.
The Virginia Department of Transportation -- an original stakeholder in the study of SB76 -- asked Kaine to suggest amendments that would allow the state, according to Transportation Secretary Pierce Homer, to maintain protection of its negotiation capability on multi-phased transportation projects, such as the Interstate 495 Beltway HOT lane project in Northern Virginia.
Access advocates, including the Virginia Press Association and the Virginia Coalition for Open Government, argued against the amendments, saying VDOT made an end-run around the FOI Advisory Council’s work by recruiting Kaine’s office for the amendments.
Following a 2 1/2-hour meeting, Mark Rubin, the governor’s senior policy advisor, agreed to ask Kaine to withdraw his amendments to Senate Bill 76, which was sponsored by Sen. R. Edward Houck, D-Spotsylvania and chairman of the FOI Advisory Council. Under the new plan, the governor agreed to send a separate bill to the General Assembly that would:
• keep from disclosure any memos, staff evaluations or other records that, if released, would jeopardize the public or private bargaining ability (to include documented evidence by the responsible public body of the basis for the non-disclosure;
• keep from disclosure records until the bargaining process of other interim agreements or the bargaining process of all phases of the comprehensive agreement are complete;
• allow public entities and any public-appointed independent review panel to hold closed meetings to discuss records that are exempt from disclosure;
• establish a sunset date of July 1, 2007 on the law, giving the FOI Advisory Council ample time to craft more acceptable language on the legislation.
Because the General Assembly was still in special session to discuss budget and transportation issues, the compromise allowed Kaine to submit a new bill.
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PBS spotlights hatchery couple's FOI fight |
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Albrights' FOI fight spotlighted on PBS
By Megan Rowe
Daily Progress staff writer 3.17.06
MONTEBELLO - When Lee and Paulette Albright began using the Virginia Freedom of Information Act to get details about why a nearby fish hatchery had been closed, PBS and Sunshine Week were the last things on their minds.
Four years later, the Nelson County couple (has been) featured in a seven-minute segment during the PBS news program “Now." As part of Sunshine Week, which encourages open government and public access to records, the hour-long episode feature(d) people who have questioned local, state and federal government policies.
Not only did the Albrights ask questions and seek information when the Virginia Department of Game and Inland Fisheries closed the fish hatchery near their Montebello farm, they went to court and successfully fought a $3,000 charge for department records.
Program link: http://www.pbs.org/now/politics/albrights.html
“It was a series of moves where they closed [the hatchery] and they opened it and then they closed it and they opened it,” Lee Albright said. “To us it seemed to be motivated by politics. … The finances didn’t seem to be the driving factor.”
When they were filmed for the “Now” episode, “we talked about how you can use FOIA to get information and some of the problems that we encountered,” Paulette Albright said. “An agency that would prefer not to share information can do things like delay. They can overcharge you to discourage you from getting information.”
“I use three words,” Lee Albright added. “Delay, inconvenience and overcharge.”
One of the couple’s first FOIA requests was a list of the game department’s employees and salaries. From there, they worked their way up to requesting information about specific expenses, an inquiry that led to the discovery of an unauthorized African safari taken by department employees. Taxpayers funded about $12,000 of the trip, the Albrights discovered.
Ultimately, a whistleblower called the state’s fraud, waste and abuse hotline, which led to the resignation of two department employees.
Until the hatchery closed, the couple had never used FOIA to request information. In dealing with the game department, the Albrights started by trying to ask officials questions but quickly discovered that “they don’t have to answer questions,” Paulette Albright said.
“You have to know what to ask for [when filing a FOIA request], such as the American Express credit card statement,” Paulette Albright said.
“Even those were somewhat misleading,” Lee Albright added. “You had to ask for the actual receipts for the items purchased.”
PBS senior correspondent Maria Hinojosa said the network decided to feature the Albrights after a senior producer read about them. The Albrights’ story appealed to her because it was an example of non-partisan participatory democracy.
“Here they are, a couple that has never questioned the government,” she said. “And suddenly, when they do, they come across a wall of silence and confusion. What I loved about them is that it didn’t put them off.”
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Va. Supreme Court Privacy Task Force |
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Special committee of court to weigh access and privacy
By Alan Cooper
Va. Lawyers Weekly
Virginia Chief Justice Leroy R. Hassell Sr. wants to at least start finding a balance between public access to court records and the protection of private information in those records.
The openness of court records is "a great guarantee against governmental tyranny and abuse," he said on Nov. 17 at the first meeting of a committee he has appointed to prepare rules of court defining public access to court records.
On the other hand, Hassell said, "There is a lot of information in our court records that in my judgment should not be readily available. . . . The balance will not be a perfect balance," he predicted of the committee's work, "but it will be a beginning. It is a significant endeavor."
The committee of almost 30 members includes judges, clerks of three levels of state courts, law professors, attorneys with varying types of practice and a police detective.
He appointed a subcommittee with Fairfax Circuit Judge Leslie M. Alden as chairman to develop a proposal to present at a meeting on Feb. 16. He said he anticipates only one further meeting of the full committee, on May 25.
Other subcommittee members are Virginia Court of Appeals Judges Robert J. Humphreys and D. Arthur Kelsey, University of Richmond law professor Kent Sinclair, Supreme Court Clerk Patricia L. Harrington, Arlington Court Clerk of Court David Bell, legal aid lawyer Henry W. McLaughlin III, Senior Assistant Richmond City Attorney Beverly Burton, Richmond criminal defense attorney Vaughan Jones, and Sandy Jack, attorney executive assistant to Hassell.
The availability of some records on the Internet has been an impetus for looking at how much private information is available in court records at the courthouse.
Before the Internet, the concept of "practical obscurity" prevailed because the court records were available only to those who went to the courthouse to look at them, and the visitors usually had some practical or business purpose in mind.
But the amount of information susceptible to identity theft became apparent with the mandate of the General Assembly for circuit court clerks to make land records available online. The idea was that title search and other land record companies would have access to the information without clogging court record rooms or requiring clerks to buy computers and other equipment for courthouse use.
The amount of private information in those files soon became apparent, however. Some mortgage companies routinely required Social Security numbers, and divorce decrees and probate records with names of family members and financial account numbers also were often part of the chain of title that searchers needed to check.
State law now requires registration, and usually the payment of a fee, before such information can be read over the Internet. Opinions vary as to whether registration and fees are a form of
"practical obscurity" similar to having the same information available only at the courthouse.
Moreover, the possibility of personal information being available online has heightened awareness of the amount of it in records at the courthouse and raised questions about just how much of it is necessary.
At the Nov. 17 meeting, court officials outlined the docket information that is available online without registration or any check on who is accessing that information. For example, arrest records and dispositions of criminal cases with some identifying information, such as Social Security numbers and full dates of birth, redacted can be checked in most general district courts in the state. The same information is available from 89 of the 120 circuit courts.
Cynthia L. McCoy, clerk of the court of appeals, said she now gets calls from persons mentioned in court of appeals opinions who are upset that the circumstances of their cases can be found through Google or some other search engine.
Fairfax Detective Tyler Armel said he has concerns that information about informants can be found in online dockets or from visits to a courthouse.
Among the approaches the committee will consider is that of the federal court system, which is moving toward making the case files in both civil and criminal cases available online. However, model court rules would generally prohibit including Social Security numbers, names of minors, dates of birth, financial account numbers and home addresses in pleadings and other filings.
If the numbers are relevant and important for clarity or identification, only the last four digits or the calendar year in a date of birth would be used.
The state effort is further complicated by the existence of laws that require inclusion of personal information in such documents as divorce decrees. A law enacted in the last session of the General Assembly now requires such information in divorce decrees to be included in an addendum not available to the public.
Frosty Landon, executive director of the Virginia Coalition for Open Government, said he was pleased that Hassell had emphasized the constitutional right to access to court documents. "We'll try to monitor it and learn more," he said of the committee's work.
__© 2005 Lawyers Weekly Inc., All Rights Reserved.
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