When my good friend Maria Everett gives presentations to state and local governments as director of the Virginia Freedom of Information Council, she frequently tells people that sometimes, even when what they are doing is legally defensible under the Freedom of Information Act, sometimes it is better from a public relations standpoint, not to do it.
Sometimes you see the same concept phrased like this: it's as important to adhere to the spirit of the law as it is to the letter of the law.
Consider these recent examples:
• This year in Madison County, three members of the board of supervisors were seen having coffee at the local McDonald's even though no notice of their get-together had been given.
• Similarly, in Halifax, six of the county's school board members and some staff members went out to eat a popular Italian restaurant prior to a meeting. There was no notice to the public for that meeting, either.
These meetings were technically legal: social gatherings of three or more board members are OK so long as they are not arranged for the purpose of discussing public business.
In both cases I will take them at their word, too, when they say that they did not discuss public business, that the meeting was purely social and that public business was not discussed. After all, they're not meeting in some private room within either restaurant. They're out in the public where anyone can see them and probably hear their conversation. So if they say they didn't talk about public business, I believe them.
But I also know myself.
I know that if it were me at that kind of relaxed setting with people I share some sort of joint endeavor with, I would be very hard pressed to avoid talking about that shared endeavor. Maybe there would be enough unrelated chit-chat to get us through to dessert, but for me, even before the appetizers arrived I'd be itching to pick everyone's brain since we were all there together.
So that's where the public relations comes in. Even if what you're doing is perfectly legal, sometimes the public's perception that you're not is more important.
If you insist on breaking bread with fellow board members, so be it. But let the public know. Go ahead and post notice of the meeting...just in case. Because the only thing harder than having to follow FOIA rules even for a friendly lunch is trying to explain to a curious (and maybe angry) public that you did not talk about public business.
The same principle applies to withholding records under one of FOIA's discretionary exemptions. The exemptions say that certain public records may be withheld from disclosure if asked for under FOIA.
There are times when an issue is so contentious, or draws such interest or attention that it is in the government's best interest to release those records that could, in any other circumstance, be withheld legally.
The exemptions in FOIA are discretionary. There are records that can be withheld, but those records may also be released.
I heard from a lawmaker during the legislative session who said someone sent him a FOIA request for some of his e-mail. There's an exemption under FOIA that lets legislators keep their "correspondence" confidential, so this person could have refused to honor the request. But, he told me, I have nothing to hide and there's no harm in releasing them, so why not hand out copies?
Why not, indeed?
Of course there are times when there is something to hide (a bargaining position, bank account numbers, medical details, attorney-client privilege, for example) or there would be harm in releasing the information (a suspect could flee, a bad guy could exploit a security vulnerability). I do not argue that all records should be release all the time.
What I argue that in the absence of harm, though, maybe there are times when the government can improve its relations with the public by declining to exercise an exemption and actively releasing the information anyway.
While they're at it, perhaps those board members could notify the public of their future coffees klatches at McDonald's.
I'm lovin' it!