2008 legislature: a not-so-good year for access
The 2008 Virginia state legislative session was not a good one for defenders of freedom of information. Bills that would have improved public access to information died. Bills that chipped away at Virginia’s FOIA through small exemptions passed into law with little opposition from lawmakers. To make matters worse, a couple of really bad access-damaging bills were passed into law. And all of this was not for lack of effort by VCOG, the Virginia Press Association and other open-government advocates. We testified dozens of times; we wrote numerous letters; we met with legislators and legislative aides to educate on the dangers of secrecy in the government process. The media tried to help by writing editorials on two of the most egregious pieces of legislation, but at times it felt like all this work fell on deaf ears.
The first blow to open government occurred just as the session began when lawmakers again voted to not allow for recorded votes in House legislative sub committees. Anyone who works with the Virginia General Assembly knows that the bulk of legislative work and legislative decisions are made at the subcommittee level. With new rules in both the Senate and the House, people were often only allowed to testify on bills in subcommittee.
Senators even went so far as to chastise a Virginia resident for daring to testify in full committee when, as the chairman put it, "the time to fix problems with legislation is at the sub committee level." How is a member of the general public to know when subcommittee meetings are occurring and what is on the agenda when these items are often not posted until the evening before the hearing? And if subcommittees are where the bills get worked on and decisions made to report out the bill, shouldn’t those votes be recorded?
It was not all bad news. There were glimmers of hope here and there when individual legislators suddenly saw the wisdom of an open process and spoke of sunshine and transparency. Bills were amended by access advocates and made better for the citizens of Virginia as a result. Some bills died, one hopes because the patrons realized that they were a bad idea.
One of the most troublesome bills this session was HB 1007 by Del. Dwight Jones, D-Richmond, a bill that sought to amend FOIA and indefinitely make secret all documents in the possession of the Virginia Fusion Intelligence Center and any state agency that does work with the center. In addition to amending FOIA, the bill would have prohibited questioning of center employees by those who were accused of "criminal intelligence activities" and prohibited legal recourse against any citizen who reported anyone to the center, no matter how unfounded the allegation. The press association led the charge to make changes to the bill and with the support of VCOG was able to make significant headway in improving the legislation. While still not perfect the bill will now allow for release of some documents after a one-year period and no longer extends the prohibition on release to all state agencies.
But for every gain there seemed to be a loss. Another bill that VCOG did a tremendous amount of work on was HB 662 by Del. Lynwood Lewis, D-Accomack, which prohibits the release of all documents related to applications for multi-million dollar conservation tax credits. VCOG succeeded in getting an amendment, offered by Sen. Edward Houck, D-Spotsylvania, to the bill in the Senate Finance Committee (by a unanimous and bi-partisan vote) that would have allowed the name of the applicant and a description of the location of the property to be releasable upon request. Since the Department of Taxation was arguing that the applications contained tax information (although they did not) VCOG only asked for information that was normally available to the public in land records after the award of the tax credit and transfer of the property to the Department of Conservation & Recreation. VCOG felt strongly that the information should be available before the award of the credit to provide some type of public oversight, however small, of the approval or denial of these large tax credits, tax credits that involve millions of dollars of taxpayer money. But in the end the bill went to conference and conferees stripped the bill of the Houck/VCOG amendment. So much for transparency in the government process; let the state decide what to do with your tax money, why should you have a right to know?
Virginia has a good Freedom of Information Act and VCOG is proud to have the honor of educating the public, legislators and others on the importance of this statutory right the law gives to the citizens of Virginia. But now we have over a hundred exemptions to the FOI Act. If every year another dozen bills chip away at the law, eventually it will be nothing but an administrative nightmare to follow for both public officials and more importantly for Virginia citizens who are seeking public documents from the very government that they elect and fund.
-- Jennifer Perkins
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