FOCUS ON FOIA
Dick Hammerstrom, a local news editor at The Free Lance-Star, is an advocate for open government and serves on several statewide organizations that urge transparency. You can email him at email@example.com.
Sunshine Week should be kickoff to two-year study of FOIA exemptions
This is Sunshine Week, a week set aside each year in which open-government advocates promote enthusiasm for transparency and unfettered access to information and the operations of government at all levels.
Sunshine Week was created years ago by journalists, but a primary goal is to get people and organizations to insist on government openness and to work to keep citizens informed.
In Virginia, Sunshine Week comes at an opportune time.
It arrives just weeks after the Virginia General Assembly passed legislation authorizing a two-year study and review of the roughly 170 exemptions in the state’s Freedom of Information Act.
Exemptions are what the government calls parts of law that officials can—but don’t have to—close to public scrutiny.
The most well-known exemptions deal with individual personnel matters, medical and mental health records, and legal advice given to public officials in their government capacity.
But the law is inconsistent.
For example, correspondence of a member of a city council or board of supervisors dealing with government business is a public record that citizens can obtain. But correspondence of a member of the state House of Delegates and State Senate does not have to be disclosed. All are public officials, but simply serving at different levels. Is it a double standard? Should it be changed?
Another example: There are clear laws prohibiting three members—or a quorum—of a public body to meet secretly to talk about the public’s business. But there is nothing to prohibit a series of one-on-one unannounced gatherings until everyone serving on the public body has discussed the public’s business with the public excluded.
Is this the transparency we want in government? Should that part of the law be strengthened?
Reports of felony crimes—or criminal incident information as the statute calls them—are required to be released. The law says police agencies must disclose a “general description” of the offense, the date and “general location” of where it occurred and a “general description” of the injuries suffered or property stolen or stolen.
Sounds OK, doesn’t it? Not quite. Just once sentence down from that comes this:
“Where the release of criminal incident information, however, is likely to jeopardize an ongoing investigation or prosecution or the safety of an individual, cause a suspect to flee or evade detection, or result in the destruction of evidence, such information may be withheld until the above-referenced damage is no longer likely to occur from release of the information.”
That part of the law is subjective and has no threshold or standard to apply. Each agency can interpret that differently. One agency can decide that releasing any news could jeopardize an investigation and withhold information. Another agency can make sure information about criminal offenses is promptly and reliably made public.
So the law gives information but just as easily can take it away. Should tougher standards apply to crime reports? Should the broad, subjective wording be narrowed?
These are just a few of the exemptions that should be reviewed during the two-year study that will be conducted by the Virginia Freedom of Information Advisory Council, the state agency established to conduct training, issue advisory opinions on FOIA and vet any proposed changes in the law. The agency has a small staff and an appointed council that makes recommendations on changes to the General Assembly.
For certain, two organizations—The Virginia Press Association and the non-profit Virginia Coalition for Open Government—will be closely involved in the review.
But it’s more important that others—civic associations, neighborhood groups, government watchdogs and just plain folks—take an interest and participate.
Maybe Sunshine Week could be turned into a two-year crusade for transparency.
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