An awkward position

Tuesday, the FOIA and procurement subcommittee of the House General Laws Committee considered 21 bills, including 12 that are on VCOG’s watch list.


Several of the bills were FOIA Council recommendations, all of which passed. VCOG opposed one of those recommendations: HB904, which creates a trade secrets exemption that extends not just to trade secret provisions already in FOIA, but potentially to all trade secrets. VCOG shared the specific concern raised by the environmental community, who last year fought to ensure that fracking companies could not call the chemicals they use in fracking a trade secret. The bill advanced on a 5-3 vote. The full committee will hear it.


VCOG backed a bill that was passed by and sent to the FOIA Council. HB213 would give FOIA Council opinions more authority, something VCOG has supported for years.


VCOG found itself in the awkward position of opposing a bill to create a FOIA ombudsman in the AG’s office. Del. Roem brought the bill, along with boundless energy and enthusiasm for the proposal. Subcommittee members were clearly intrigued, asking many questions and generally speaking positively about the idea. The FOIA Council and a representative of the AG’s office answered questions but remained neutral, especially when it came to how the office would be set up. The Press Association spoke in support of the ombudsman as a consumer advocate-type position.


VCOG was the only speaker in opposition, and if it sounds counterintuitive that we did, I’d like to explain.


First, I am thrilled that someone with Del. Roem’s passion for transparency is making her voice heard in the General Assembly. I am also thrilled to see these subcommittee members (only one of whom has ever been on a FOIA subcommittee) be so interested and involved. They asked great questions not only on this bill but others.


But as to the specific proposal, I first pointed out why we have the FOIA Council and why we have it in the legislative branch. That was a deliberate choice 17 years ago, when the office was created, that the AG’s office was not set up to field citizen questions. The FOIA Council was to serve as a resource for citizens, the press and government.


If we were creating a new agency out of whole cloth, we might make a different choice, one like Del. Roem suggests, which itself is modeled after Maryland’s ombudsman. Keep in mind that the ombudsman is Maryland’s first government FOIA office. They don’t have a competing office elsewhere in government. But we do: the FOIA Council already exists.


If there were two offices offering to help with FOIA disputes, I fear much confusion among state agencies — whose FOIA officers are required by statute to be trained by the FOIA Council annually — who could cherry pick among potentially conflicting opinions or direction of the two entities. I fear confusion among the public, too, when having to go to two different agencies for help with FOIA questions of state government versus local government. Despite much talk about this being a place for the public to go, there was nothing in the bill that actually paved a pathway for how they were to go about doing that. State statute still allows only certain named officers to ask for AG opinions on matters like interpreting FOIA — citizens cannot. Again, that was one reason the FOIA Council was established, so citizens did have a place to ask for an opinion.


To me, the answer to having a more hands-on approach to FOIA dispute resolution is not to create another agency but to endow the FOIA Council with more powers, authority and funding. Del. Mullin’s bill addresses that second point.


There was a fiscal impact statement of more than $800,000 on this bill. While I think the estimate was likely overblown, even a fraction of that amount could be funneled to the FOIA Council instead to give them more staff and resources to be more involved with these potential new powers.


Del. Roem raised a really important issue and I hope like crazy that this was an opening salvo to beefed up FOIA compliance efforts, not the last word.


Here are our positions on bills being heard Wednesday by the Senate subcommittee on FOIA.





This bill confers a right to speak at open meetings, but gives public bodies leeway to craft policies — as they do already — regulating how and when those comments will be heard.
States that guarantee public comment in their open meetings rules:

Alaska, Arizona, California, Delaware, Florida, Hawaii, Louisiana, Montana, Nebraska, Nevada, New Jersey, North Carolina, Pennsylvania and Vermont.


Access to student directory data has been allowed for literally decades. Local businesses, universities, advocacy groups and more have used it to offer students information on graduate programs, coupons for local businesses or apartment rentals and requests to join causes of interest. Access to personal cell phone numbers does seem “icky” but discomfort does not equal a compelling interest to be protected by an exemption, especially when cell phone numbers are already widely used by marketers.


VCOG supports efforts to strengthen enforcement for practices that directly undermine the policy of FOIA that “at all times the public is to be the beneficiary of any action taken at any level of government.”


The bill needs clarification about how a record comes to be designated classified or sensitive so that it does not expand to other types of records.


The bill is a major policy shift that has not been discussed at the FOIA Council. Access to court case records are already guaranteed by the First Amendment, but this bill would remove records of general government administration — meaning payroll, procurement, safety reports, reimbursement and others that detail how taxpayer money is spent — from the rights/protections of FOIA.


The bill seeks to reinsert a provision (line 56) that was taken out by last year’s ominous FOIA revision bill because it is redundant: a record not about public business is already not a “public record” that will be subject to FOIA’s disclosure rules. Additionally, there is no compelling reason why General Assembly members should be allowed to operate social media accounts differently from any of the others named in the working papers exemption (lines 70-94) or from all other government employees.




Though well-intentioned, neither the idea of defining the term “custodian” (lines 15-18), nor the bill’s proposed changes in lines 141-147 and 161-162 have been vetted by the FOIA Council. The proposal potentially opens the door for confusion about custodianship that, in my fielding of hundreds of FOIA complaints each year, as well as the hundreds of government employees I have trained, I have rarely encountered.


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