Discretion is the better part of FOIA

Public records in Virginia are presumed open. As such, they must be disclosed upon request unless a law in another part of the Virginia (or, possibly federal) law prohibits it. Period.


But, wait a minute, what about exemptions to disclosure in FOIA? Don’t those prohibit disclosure?


No, no they don’t.


FOIA’s 142-some-odd exemptions are discretionary. They do not require disclosure, they do not prohibit disclosure. Instead, they allow records to be withheld in the custodian’s discretion.


It sounds pretty simple, but we see people on both sides of the request get it wrong all the time.


On the government side, we see statements like this one, made by a county administrator in a written response denying a request for records: “Under FOIA, the County is mandated ...  to not release confidential information.”


Nowhere does FOIA say that custodians are mandated not to release confidential information. Another law may make certain records absolutely confidential, and FOIA says that another law may be invoked, but FOIA itself does not mandate confidentiality.


On the requester side, we see requesters complain that the government has abused its discretion by asserting an exemption and withholding the records. The requesters are not arguing that the exemption is inapplicable; instead they’ll say that even if the records can be withheld, the government should exercise its discretion by releasing them.


As an access advocate, I am sympathetic. In fact, I frequently counsel requesters who have been denied records to appeal to the government’s better nature and/or public policy by making the case for why the records should be released irrespective of any exemption.


That is different, however, from accusing the government of wrong-doing because an exemption is lawfully and properly invoked. In a sense, these requesters try to make the case for mandating a particular kind of discretion, which, of course, negates the entire concept of discretion.


Discretion is a vital part of FOIA. It should be exercised with discretion, not by rote, but with careful thought and deliberation. One part of FOIA’s overall policy should always be kept in mind: exemptions shall be construed narrowly to favor public access.


Public bodies seem to be better at this careful consideration when it comes closed meetings. Many jurisdictions around the state will discuss issues in public even though they could be discussed behind closed doors under one of FOIA’s meeting exemptions. They understand that there is public benefit in discussing even potentially sensitive subjects out in the open.


Similarly, there is public value in releasing some records that could be withheld. For instance, though the exemption for criminal investigatory records can be invoked to refuse release of records pertaining to closed cases, even ones that are years and years old, many police departments deny requests for them out of habit, simply because they can. Under FOIA, they can’t be forced to abstain from using the exemption, but if releasing the record would not jeopardize the safety of victims, confidential informants, evidence, etc., discretion would seem to favor release of the records.


Sometimes discretion is the better part of valor.

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