The Shady (as in no Sunshine) General Assembly

Not a good year legislative year for access advocates

The 2008 Virginia legislative session was not a good one for defenders of freedom of information.    Bills that would have improved public access to information died.  Bills that chipped away at Virginia’s FOI Act through small exemptions passed into law with little opposition from lawmakers.  To make matters worse a couple of really bad access-damaging bills were passed into law.

And all of this was not for lack of effort by VCOG, the Press Association and other open records advocates.
We testified dozens of times; we wrote numerous letters; we met with legislators and legislative aides to educate on the dangers of secrecy in the governmental process. The media tried to help by writing editorials on two of the most egregious pieces of legislation, but at times it felt like all this work fell on deaf ears.

The first blow to open government occurred just as the session began when House lawmakers voted to continue the practice of not recording subcommittee votes.  Anyone who works with the Virginia General Assembly knows that the bulk of legislative work, and frankly legislative decisions are made at the subcommittee level.  With other new rules in both the Senate and the House of Delegates, people were often only allowed to testify on bills in subcommittee.

Senators even went so far as to chastise a Virginia resident for daring to testify in full committee when, as the chairman put it, the time to fix problems with legislation is at the subcommittee level. And how easy is it for a member of the general public to know when subcommittee meetings are scheduled or what is on the agenda when these items are often not posted until the night before the hearing?  

It was not all bad news. There were glimmers of hope here and there when individual legislators suddenly saw the wisdom of an open process and spoke of sunshine and transparency.  Bills were amended by access advocates and made better for the citizens of Virginia as a result.  Some bills died, one hopes because the patrons realized that they were a bad idea.

One of the most troublesome bills, from a FOIA perspective, was HB 1007 by Del. Dwight Jones, a bill that sought to amend FOIA and indefinitely make secret all documents in the possession of the Virginia Fusion Intelligence Center and any state agency that works with the center.   In addition to amending FOIA the bill would have prohibited questioning of center employees by those who were accused of "criminal intelligence activities" and prohibited some legal recourse against any citizen who reported anyone to the center, no matter how unfounded the allegation.

The Virginia Press Association led the charge to make changes to the bill and with the support of VCOG were able to make significant headway in improving the legislation.  While still not perfect the bill now will allow for release of some documents after a one-year period and no longer extends the prohibition on release to all state agencies.  

But for every gain there seemed to be a loss.  Another bill that VCOG did a tremendous amount of work on was HB 662 by Delegate Lynwood Lewis, which prohibits the release of all documents related to applications for multi-million dollar conservation tax credits.  VCOG succeeded in getting an amendment offered by Sen. Edd Houck in the Senate Finance Committee (by a unanimous and bipartisan vote, I might add) that would have allowed the name of the applicant and a description of the location of the property to be releasable upon request.  Since the Department of Taxation was arguing that the applications contained tax information (although they did not) VCOG only asked for information that was normally available to the public in land records after the award of the tax credit and transfer of the property to the Department of Conservation & Recreation. The reason we felt strongly that it should be available before the award of the credit was to provide some type of public oversight, however small, of the approval or denial of these large tax credits.  Tax credits, mind you, which involve literally millions of dollars of taxpayer money.  But in the end the bill went to conference and conferees stripped the bill of the Houck/VCOG amendment.

So much for transparency in the government process; let the state decide what to do with your tax money, why should you have a right to know?  

Virginia has a good Freedom of Information law and VCOG is proud to have the honor of educating the public, legislators and others on the importance of this statutory right that the law gives to the citizens of Virginia. But now we have over a hundred exemptions to the FOI Act and if every year another dozen bills become law that chip away at the law, eventually it will be nothing but an administrative nightmare to follow for both public officials and more importantly for Virginia citizens who are seeking public documents from the very government that they elect and fund.

So the next time someone has a great idea to solve some issue by closing out the process and amending Virginia’s Freedom of Information Act with exemption number 150, please, on behalf of the citizens of the great state of Virginia, think again.

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