Mandatory designation

An interesting FOIA bill was filed yesterday by Del. Bob Marshall. In HB1722 Marshall proposes to add a requirement that

at the time of creation of any public record, the custodian of such records that are subject to FOIA shall designate whether the record is subject to FOIA's mandatory disclosure provisions or otherwise exempt from disclosure. The bill requires that such designation shall appear on the face of the record and be updated by the custodian in a timely manner in the event of any changes. Failure to make the required designation shall, upon receipt of a request for such record, waive any charge authorized under FOIA.

The bill goes on to reiterate a proposal mentioned in Marshall's other FOIA bill, HB 1457, that 

in addition to the civil penalty under FOIA, a public employee found to have committed a willful and knowing violation of FOIA may be subject to other disciplinary action, including suspension, demotion, or termination of public employment. 

(The bill is supposedly aimed at UVA and its resistance to releasing records relating to former employee Michael Mann's climate change research. That same records request has prompted Sen. Chap Petersen to offer his own bill limiting the powers of the AG by prohibiting the office from investigating academic research.)

What do you think of HB 1722? Tell us your thoughts in the comments section below.


I hope Del. Marshall's bill passes. Not for Climategate but because the work of government needs to be transparent and government officials must be held accountable.

Sarah S -- Thanks for your input. I agree that this bill is an attempt at transparency. Unfortunately, I don't think it does what it may be attempting to do.

The problem we see is that it could take away the discretion currently built into FOIA. That is, FOIA's exemptions are discretionary so that a record that MAY be withheld but it doesn't HAVE to be. The fear is that by designating a record as exempt, then subsequent employees may simply reject a request for the record, rather than reviewing it for possible release.

And, failure to designate only results in the waiver of fees on a FOIA request; it doesn't actually compel the release of records.

And there may be a problem logistically because this would apply to EVERY government record, no matter who creates it (from the custodian to the governor), which would mean people with little to no knowledge of FOIA could be making the decision about whether something was exempt or not.

The only decent legislation ever proposed by Bob Marshall...

I hope Chap Peterson's bill passes, as well. There's no need for the AG's office to investigate academic research.

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