Creative uses of FOIA may be legal, but they don't serve the public well
Imagine these two scenarios:
1. Prior to a city council meeting, Councilman A huddles with Councilman B, talking, nodding and gesturing. Councilman B then goes over to Councilman C, again talking earnestly. Councilman B, then goes to Councilman D, then, in turn, Councilmen E, F and G, where similar conversations take place. The meeting starts, and when it comes time for a contentious issue to be discussed, the council skips discussion and immediately votes on the matter.
2. Late in the evening, after the last item on the board of supervisors’ meeting agenda has been discussed, a weary public and press depart to digest what they’ve just witnessed. Unbeknownst to them, however, the board did not adjourn after that last item, and instead went into closed session, came out, and voted on an important legal settlement.
Both scenarios are legal under Virginia’s Freedom of Information Act. FOIA says that when three of more members of a public body get together to talk about public business, then that meeting must follow FOIA’s procedure for notice and for holding closed sessions. That means that two members can get together to talk without running afoul of the law.
In the first example, there’s nothing wrong with council members meeting two by two. The problem, of course, is that at the end of the “daisy chain,” B has effectively determined what every other council member thinks or how he will vote, and has passed that information on to the next member he talks to, and so on. No wonder there’s no discussion when the issue comes up during the meeting: They’ve already had the full discussion outside the public’s presence.
Nor is there is anything illegal under FOIA about adding items to a meeting agenda, whether at the beginning, middle or end of the meeting. FOIA only says that if there is an agenda, it must be shared with the public.
Nonetheless, in the second example, the board of supervisors is manipulating the law by waiting until the public is no longer watching to conduct further public business.
Unfortunately, public bodies all too often figure out ways to play around the edges of FOIA’s open meetings procedures, toeing the line of the literal text, while simultaneously undermining the spirit of the law.
Sometimes they limit when the public can comment at a meeting, for how long, and even about what. Sometimes they talk, call and e-mail each other so much prior to the meeting that there’s no need for discussion at the meeting. Sometimes they take a “recess” at the end of a meeting so that they can “reconvene” that meeting whenever they want without having to post notice.
They can be creative. But what is the cost of such creativity? And wouldn’t that time be better spent informing the public instead of hiding from them?
When a public body pushes the envelope of what FOIA allows, the public is not only cut out of the democratic process, but they inevitably begin distrusting their elected representatives.
Even if the letter of the law is being followed, the public begins to suspect that there is more to the story when they are shut out; that there is something to hide; that they are viewed as problems to be worked around, rather than constituents to be served.
It is no doubt more efficient to hold meetings without the public present, or without public comment or without contentious in-meeting debate, but democracy is not neat and tidy. It can be rough and tumble. Sometimes it’s downright ugly. That’s not something to hide from by skirting around FOIA’s perimeters. It’s something to be embraced.