Maria Everett: Appreciating FOIA

Appreciating the FOIA:
All of Us Must Do Better

Executive director, FOIA Council

Mar 16, 2007

The Virginia Freedom of Information Advisory Council, a state agency, was established in July 2000. I have had the privilege of serving as its executive director since that time. With thousands of advisory opinions on the interpretation of FOIA and nearly as many FOIA training sessions under my belt, I've recognized one constant -- we all need to do better. We need to be better government officials, better journalists, and better-informed citizens. We all need a better understanding of FOIA, how it works, and why it is important.

James Madison understood and tried to communicate that understanding when he observed in 1822, "A popular government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance; And a people who mean to be their own Governors, must arm themselves with the power which Knowledge gives." Madison's time seems long ago, but if it was apparent then, are we no less equipped to comprehend it today?

BEGIN WITH government officials and what "doing better" means for us. First, we need to be clear who our client is. We are public servants and it is the public as a whole that we serve; when that conflicts with industry representatives, developers, or other organized subsets with whom we deal, the public should be the victor. FOIA is clear: All records owned or prepared by or merely in the possession of state or local government in the transaction of public business are presumed open to the public unless an exception to public release is specifically stated in law. We need to adjust our collective attitude to be predisposed to disclose.

All public records have the same value -- they are all important and belong to our clients. A matter of public record denotes the public domain, available for the asking. As human beings we have an innate sense of fairness; however, in our professional lives it is not our individual sense of fairness that dictates whether a record should be released. It is the collective sense as expressed in the law. FOIA is replete with exemptions to protect public safety, privacy of individuals, and proprietary records. My experience is that government officials want to do the right thing. In the realm of FOIA, we just need to know what that is. FOIA training is one answer. For better or worse, only we can violate FOIA.

LOOK NOW to what "doing better" means to the media. They could benefit from FOIA training, too, in order to understand how the law works and not rely on their perception of the law. The FOIA audits conducted by the media to gauge government compliance with FOIA are very important and necessary tools. To be instructive, however, the audits need to be scientifically designed and tested to yield meaningful and reliable data -- not just anecdotal information.

The people conducting the audits must also be instructed on proper methodology. For example, a government response advising of allowable charges for a requested record is not a denial of the request, as has been reported in the most recent audit. Most newspapers around the state carried the same story about the same public official who did not know his obligations under the law and responded in- appropriately. This anecdote did not give a sense of how government is doing -- it only pointed out that specific deficiency. Where were the statistics on the results of the audit as a whole?

IT IS HARDER to find fault with citizens, as they are the beneficiaries of the law. Government of, by, and for the people -- that means all of us. FOIA is where that principle, first expressed by Abraham Lincoln, finds its meaning in the day-to-day practice in a democratic republic.

FOIA guarantees the right to inspect and/or copy public records, but does not require government officials to summarize their contents or to provide explanations. FOIA is not free, and there may be charges for providing records.

Significant progress has been made, but we should not rest on our laurels. We all need to continue to do better. Equipped with a better understanding of the mechanics of FOIA and an appreciation of its intrinsic value, we can do better.

Maria Everett is the executive director of the Virginia Freedom of Information Advisory Council.ďż˝