Just don't

Yeah, hi, so, um, I pretty much just want to vent. Hope you’re OK with that. 

There’s a lot going on in the world today and I might be processing some subconscious feelings. But it might be that yesterday I had the pleasure of doing two presentations to the constituents of Pat O’Bannon, current chair of the Henrico County Board of Supervisors and member of the VCOG board of directors for at least 10 years.

Why would that make so waspish today? Well, my feet hurt, which happens every time I have to trade the slipper-wear of my home-office for big-girl shoes. And it’s rained for darn-near 5 days in a row. The woods surrounding my house are looking increasingly like the Amazon rainforest.

But I think, more than anything, it is this: after listening to a co-presenter yesterday (the county manager’s super-engaged chief of staff, Cari Tretina) talk about all the proactive disclosure the county does, the crime statistics they post and the fact that they don’t charge for many FOIA requests, I drove home thinking about all the FOIA trouble spots around the state I heard about just this week. 

And now, I just want to complain about them because I know it doesn’t have to be that way.

Here’s what I would say to the public bodies I heard about this week.

• Don’t hold a meeting without giving any notice.

• Don’t lock the doors to a meeting and let in citizens only because one of them happens to walk in behind an “invited guest.”

• Don’t set a response deadline for February and then go silent through May.

• Don’t wait until the 5th day to say you need an additional 7 days, then wait until the 10th total day to finally give a cost estimate, take the requester’s money and then announce you’ll need a month’s worth of rolling deadlines.

• Don’t give an estimate, take the requester’s money and then refuse to release the records until the requester pays the revised estimate, which is more than twice what was originally quoted.

• Don’t refuse to turn over records until the requester prepays in an amount under $200.

• Don’t have a meeting in a place where the public has to sign in because of “building rules.” 

• Don’t quote a 4-figure estimate for records, ask for a narrowing of the request and then return a 5-figure estimate.

• Don’t charge the pro-rated salary of the highest-paid person in the department to review maintenance records “for accuracy.”

Again: this was just this past week!

Not all of these — in fact, maybe only a couple — are actually prohibited by FOIA’s terms (I’m looking at you, no-notice, locked doors and <$200 prepayment!).

Most of these have to do with fees, response times and the interaction between the two. They’re not quite prohibited by FOIA, that is if you’re looking at the literal words on the page. But if you’re looking at the spirit of the law, they all fall short.

The specific words on the page are important – and yes, a judge would most definitely do analysis using rules of statutory construction – but FOIA in practice is a much squishier thing. In several places it talks about working together, coming to agreements, being reasonable.

The policy statement, too, makes it clear that there’s no such thing as a purely literal application of its provisions: “The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government.”

In short: there’s a lot of room to maneuver in FOIA. Its provisions can be rigidly hewed to, or they can be bent to accommodate.

Is promoting increased awareness of the government to charge a 5-figure sum? You bet, just not the kind of public awareness FOIA’s getting at. 

Is holding a meeting in an alternative site where people now have to sign in affording every opportunity for them to witness the operations of government? Is blowing your deadline by three months without a peep construing FOIA’s provisions liberally in favor of access?

Some of you reading this will be wanting to know where these transgressions happened, but I’m not going to say.

It may seem counterintuitive for a transparency advocate to give everyone the proverbial Glamour-don’t black bar across the eyes. It’s not so much that I want to protect the innocent. On the contrary. I want people to understand that these things happen everywhere.

I am mindful of the fact that FOIA procedures are followed day in and day out just the way they are supposed to. Thank goodness! But all too often, when trying to advocate for improvements to FOIA, I am met with skepticism that the problems don’t exist or that the ones that do are one-offs.

They may be one-offs for that public body. They may be one-offs under the precise set of facts, like not quite on-point. But you’d have to be an ostrich not to understand that citizens are being denied access to records and meetings if not every day, at least every week.

That stings. And it just doesn’t have to be that way.