Spirits dancing on the head of a pin

Spirits dancing on the head of a pin:The public can lose out from rigid adherence to the words on the page

This post originally appeared on VCOG's Substack Newsletter


In FOIA Land, we like to talk about the letter of the law versus the spirit of the law. There are the words on the page, but just like a script in the hands of different directors, FOIA in the hands of people with different experience and experiences, different resources, different competing job duties and so on, will apply those words in countless different ways. I think I’ve seen at least eleventy-hundred of those different ways.

The goal, always the goal, is to interpret those words on the page within the spirit of the law, another way of saying within the policy of the law. Virginia’s FOIA (and a bunch of other public records and meetings laws across the country) are prefaced by a policy. It’s a remarkable statement, lofty and even grand. The policy statement is a microcosm of democracy and a balance of interests that ultimately tilts towards the citizens.

By enacting this chapter, the General Assembly ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked.

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. Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law. This chapter shall not be construed to discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth.

Provisions are to be liberally construed to promote an increased awareness by all persons of governmental activities.

That right there is the spirit of the law. The policy statement ensures that when requests for records are being filled, when meetings are being conducted, that they all are handled with an eye towards promoting increased awareness. You can’t promote increased awareness if you’re never going to look beyond the words on the page.

Lawyers don’t much like the spirit of the law. Not just this law, but any law. They want one interpretation — their interpretation — of the words on the page, not some squishy, elusive, ever-shifting spirit. I can sympathize.

I thought law school was going to be about debating how many angels could dance on the head of a pin, only to have it drilled into me that if I wanted to zealously represent my clients, I better make sure I knew who specifically was qualified to be an angel, whether pole-dancing was among the acceptable forms of movement and exactly how big that pinhead was. And where did you go to find that out: the statutes.

Without getting into a whole folderol about how judges interpret the U.S. Constitution, what I learned was that there is always a lot of gray area in the statutes. That’s why there can be dueling interpretations. The law doesn’t necessarily mean one thing and not another until a judge says so. And then the legislature changes it and we start over.

Unless and until a judge rules on it, there can be multiple, reasonable interpretations of the same statute. But because FOIA’s policy statement says that its provisions “shall be liberally construed to promote an increased awareness,” I’m always going to lean into the interpretation that does just that.

Technical, rigid adherence to the words on the page, without the context of the policy, is an unkept promise.

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