VPAEditorial for House Bill 407 / Senate Bill 130
A Moment of Clarity
The work of the General Assembly often descends into a sort of numb rush, as subcommittee chairs hustle bills through like fast-moving trains. Explanations are given, objections are made, amendments are tacked on, all in perfunctory fashion.
So it was notable last week when Delegate Terrie Suit of Virginia Beach slowed the subcommittee train long enough to nail the University of Virginia to the wall with a few direct and thoughtful questions. The University is seeking to amend Virginia’s Freedom of Information Act so that it will not have to identify donors who seek to remain anonymous. The request seems innocent enough in this privacy-obsessed age. But Delegate Suit brought the discussion back to first principles.
Is it possible, she queried, for a donor to the University to give anonymously under current law? The University’s representative danced around the issue, but it ultimately became clear that the answer is "yes." Several years ago the University won that battle, over the objection of public access advocates, by excluding University-affiliated foundations (currently 26 in number) from the state’s Freedom of Information Act. Anyone who wishes to shower largesse upon the University anonymously may give to one of many 501(c) foundations, whose funds now number in the billions of dollars.
This year’s debate is over the public operations of the University, which are presumed to operate under the same open-government rules that apply to all public bodies. The University wants to give donors to the public side the same secrecy available to those who give to a foundation.
How do we know, asked Delegate Suit, when a vendor who gets a big contract from the University coincidentally happens to be a big donor? Under current law, it’s already too late to find out, as long as the donor gives to a foundation. If HB 407 or its companion bill, SB 130, pass, that same secrecy will apply to gifts made directly to the public part of the University, and the simple answer to the Delegate’s question will be "you can’t know if the donor doesn’twant you to know."
Year after year, the largest donor to the University of Virginia is the taxpayers of Virginia. The General Assembly sends over $150 million of their dollars annually to Charlottesville to support the University’s operations. Increasingly, even that huge sum is dwarfed by the massive infusion of Private money from operations, investments and gifts that fuel a $2 billion University budget. However, as long as the University wishes to maintain the fiction that it is public, it should consider transparency of the public side of its operations a reasonable quid pro quo for that taxpayer support.
Delegate Suit hit the nail on the head, and we support every effort that she and her colleagues can exert to keep the identities of donors to all public bodies, including the University, in the open.
Day and night, as Virginians go about their business, streams of information about some of them are being gathered and analyzed in the basement of Virginia State Police headquarters in Richmond. The VSP operates a Fusion Intelligence Center, like similar centers housed in other states, that constantly shares information culled from local, state, federal and international sources. It is staffed by state, local and federal employees.
The concept is not new. Soon after the attacks of September 11, 2001, retired Admiral John Poindexter touted the concept of Total Information Awareness -- that we should mine data about our citizens from every possible source in order to preempt terrorist activity. His more extreme proposals were met with revulsion by a large segment of the public because they came too close to the sort of totalitarian nightmare we were taught to fear as children. Secret surveillance of the citizenry happened in old-style Soviet-bloc countries, in Communist China, and Saddam’s Iraq, but not here.
Well, Poindexter’s vision lives on, as a bill introduced by Delegate Dwight Jones reveals. The legislation, ironically numbered House Bill 1007, massively strengthens the hand of the Fusion Intelligence Center, and raises disturbing questions. Although the stated purpose of the legislation is to give federal agencies the assurance that secret information they share with the Virginia Fusion Intelligence Center will not be disclosed, the bill goes far beyond that.
First, the bill makes confidential all information housed at the Fusion Intelligence Center, including not only terrorism leads but "criminal intelligence information," a term so gauzily defined in HB 1007 that it literally means anything the government wants it to mean. For decades, the State Police and other law-enforcement officials operated successfully under broad exclusions from the Virginia Freedom of Information Act. Now the law-enforcement community, having conflated the preemption of terrorists with the preemption of crime in general, wants to remove this vaguely defined cache of "criminal intelligence information," held by the VSP from any application of FOIA.
Second, the bill makes employees of the Center immune from subpoena. If you are charged by the State with a crime, and the charge is based on intelligence shoddily assembled by the Fusion Intelligence Center, your lawyer will never be able to cross-examine the people who collected and
analyzed that information in a court of law.
Third, the bill encourages snitching of the worst kind. Anyone who wants to accuse a neighbor, or to curry favor with the government, is not discouraged from making false or malicious charges against you. HB 1007 gives him immunity from your lawsuit for defamation, invasion of privacy or
To question HB 1007 will elicit the predictable red-faced, tub-thumping of politicians who have profitably, albeit cynically, mined the rich vein of "learning the lessons of 9-11." Before they run that game on us again, get a copy of HB 1007 and read it. And say hello to Big Brother.
Making Your FOIA Life Easier
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Thursday, May 30, 2013
9:00 - 12:00
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