The Power to Enforce FOIA

Director's Cut
by Megan Rhyne
VCOG Executive Director 

Much attention this summer was directed at the governor's Government Reform Commission's revelation that it held a series of closed-door workgroups to discuss policy recommendations. Last year the commission used public committees to consider recommendations, so when the commission's staff announced in April that it would use the workgroup format, I don't think anyone thought they would be anything other than open to the public also.

Just a few days after it became clear they were anything but open (and only after some agonizing explanations of how this was some new concept of transparency that many people just might not be able to understand), the governor wisely agreed to require future workgroups to meet in public . . . but only if three or more commission members are present.

(There's an argument to be made that if the workgroups can be characterized as entities set up to advise the commission, the workgroups are open, regardless of how many commission members are present.)

Anyway, it was not surprising that the political long knives came out very quickly. The governor's office jabbed that his predecessor would not have opened up any of his meetings. The Democrats parried, saying they were intentionally excluded.

Then, Alexandria's Del. David Englin, a Democrat, demanded that Attorney General Ken Cuccinelli, a Republican, investigate whether the workgroups had violated FOIA. The AG declined, saying his office didn't have investigatory authority under FOIA.

Perhaps sensing that this part of the drama was getting lost in the partisan weeds, The Roanoke Times penned an editorial on Sept. 15 that raised the question: if the Attorney General is correct (the editorial thought he was not, but regardless), should the AG have the power to investigate FOIA violations?

It's an excellent question.

The FOIA Council, set up in 2000, has handled thousands of FOIA inquiries over the years. It issues formal and informal opinions, it sets up workgroups (open to the public, of course) to study changes to FOIA, and conducts statewide "FOIA roadshows" to train government employees on the ins and outs and current trends of Virginia's FOIA.

But, the council doesn't have enforcement authority. It doesn't even have the authority to mediate a FOIA dispute.

Connecticut has that. Its FOIA Commission issues binding opinions. The New York FOIA office's has de facto binding authority.

The attorneys general in Texas, Kentucky and Hawaii all have some sort of authority to investigate and resolve FOIA disputes, as well as the special FOIA divisions to do it.

Given that the FOIA Council has been devoted to studying and interpreting FOIA -- and FOIA only -- for more than 10 years, I think it should also be vested with enforcement authority. But whether it be the FOIA Council or the Attorney General, someone else should get some kind of enforcement authority, and that authority should include the power to investigate, to enforce and/or to resolve disputes.

As it now stands, the only option for citizens and government involved in a FOIA dispute is to go to court. This is costly, time-consuming and, at least to citizens, pretty intimidating. District and circuit court opinions also apply only to that locality, setting the stage for different interpretations of the same law in different parts of the state.

So, when will the time be right to create a better way of resolving FOIA disputes in Virginia?