It's true that we don't know what secrets are being kept that we never find out about. It's like proving that the dog didn't bark. Even so, haven't you noticed that with government information in particular, it almost always has a way of coming out?
A recent story in the Daily Press reminded me of this fact.
The story is about how the Gloucester County School Board went about making the decision to close a local school. The law says that a special hearing must be held before making a decision on whether to close a school, and that hearing must provide for public comment and must be advertised in the newspaper at least 10 days in advance.
(FYI, these are the types of public notice laws VCOG lobbies to keep intact, despite proposals every legislative year to take notices out of newspapers and on government websites instead.)
The decision to close T.C. Walker Elementary proved unpopular among Gloucester's African American residents because of the school's connection to a local man who was born a slave, but who later served on the county's board of supervisors.
The board sought an opinion from an attorney who represents school boards on whether it was good enough that the public had the opportunity at the regular meeting to express its opinion. The attorney said that yes, the public did get to speak out on the measure, but that no, the school board had not complied with the requirement that a hearing on the school-closing issue be advertised 10 days in advance.
So, what does that have to do with information "getting out."
Well, the Daily Press filed a FOIA request for a copy of the attorney's opinion. It was denied. But then a citizen who had a copy of the opinion gave it to the paper, who used it to write this story.
The county was correct in that the attorney's opinion could be withheld from disclosure under FOIA's exemption for written legal advice. But, guess what? That exemption, like all but one of FOIA's exemptions, is discretionary. No one has to invoke any available exemption. And given the intense public interest in the issue -- and the puzzlement over the sudden scheduling of a special hearing on an already-made decision -- it is hard to understand why school board officials refused the request to provide the record. If the board's intent was to keep the information hidden, it didn't work. The information got out. The citizens know. (And the sky didn't fall.)
I have two favorite examples of how information gets out despite attempts to keep it secret.
• When Tim Kaine was governor, state Republicans wanted to find out how much out-of-state travel he was doing as the head of the Democratic National Committee. They asked Kaine for his travel schedule. Kaine refused, citing the working paper exemption. Following up on the issue, the Associated Press went to the State Police and asked for their security detail for the governor. The State Police couldn't use the working papers exemption. The AP was able to figure out from the manifests when the governor was traveling for Virginia business and when he was traveling for DNC business.
• Former Delegate Phil Hamilton also cited the working papers exemption when state Democrats asked him for correspondence between him and Old Dominion University about a possible funding-for-job deal. The Virginian-Pilot then went to ODU officials and asked for the same records. Those officials could not use the working papers exemption and turned the records over. Federal prosecutors partially relied on those messages to prove the existence of the improper quid pro quo relationship.
I also heard of an instance where a citizen requested email correspondence between officials in two neighboring localities about a particular issue. Comparing the two, he noted that one locality left out many critical exchanges. Maybe that locality just didn't complete a thorough search of its records, but is sure looked fishy, whatever the reason.
Not all revelations have the bombshell impact of the Hamilton emails, but even with seemingly innocuous information, there are some in government whose first reaction is to withhold if they can. I think some people get overconfident in their ability to keep a lid on information, to control the narrative, to dole out only the information they want the public to know. Because people are human, some will make mistakes, some will leak, some will not feel that certain information should be kept confidential and the information will come out. Maybe records withheld by one person or agency are available from another person or agency.
It would be refreshing if more people in government took the position that they will release information even when it could be withheld. A decision to deny release of the information isn't always the end of the story.