Wednesday, February 16, 2011

FOIA fun in the Virginia Senate

Four bills affecting the Virginia Freedom of Information Act [“FOIA”], Va. Code §§ 2.2-3700-2.2-3714, are facing scrutiny in the Virginia Senate General Laws and Technology Committee today.  FOIA is a system for requesting copies of public documents for non-criminal purposes.  It is a tool used primarily by journalists, politicians, and citizen activists to learn more about their government and affect or report on its actions. 

Those who tend to believe in the infallibility of the government, or wish not to be scrutinized while in power tend to oppose expansions to FOIA.  Those who seek information about their government from the outside tend to favor expansions to FOIA.  Below is a brief description of the four bills before the Senate General Laws and Technology Committee for Wednesday February 15, 2011:

HB1457:  This bill doubles the penalties assessed against the public official in court proceedings when the court finds that the violation is willful and knowing.  Originally this bill also included a statement that the public official who is found to have willfully and knowingly violated the statute could be suspended or fired.  This latter portion has been removed.  On the whole this increases accountability, and is a move in the right direction.

HB1860:  Under Va. Code § 2.2-3713 a person suing to enforce FOIA is guaranteed a hearing within seven days.  This bill would restrict the seven day guarantee.  The guarantee would only apply in those instances in which the party being sued has a copy of the lawsuit three or more days prior to filing the lawsuit.  This is a minor additional restriction in the FOIA process.   This is a move in the wrong direction, but does not dramatically cut down on the powers of citizens.

HB2020:  This (substitute) bill would render an entire category of documents not subject to FOIA.  These records would be “records . . . not prepared for or used in the transaction of public business.”  Based on the original version of this bill it appears this is designed to protect against the forced disclosure of truly personal notes journals and correspondence.  (For example a note between an employee and his child’s school regarding the child’s behavior on a given day.)  The goal of the bill is laudable.  The effect is truly dangerous and affects the core of a major benefit of FOIA.  A public official using public facilities, publicly provided email accounts, while being paid a public salary might also use all of those publicly provided items to transact business of a non-public, but questionable nature.  For example a county official might use public facilities to contact a private business associate to inform them of a rumor going around the office that might affect their business, or solicit campaign donations, or publish civilly actionable defamatory statements about a private matter.  The examples are numerous.  By adding in this blanket exception, FOIA’s use will be restricted to researching official acts of government, while prohibiting research of private, but inappropriate uses of public office.  This bill still needs to be reworked to protect mere employees, while notifying more powerful public officials that their acts while sitting at a publicly provided computer, using a publicly provided email address, during regular business hours are reasonably open to public scrutiny.

HB2041: This bill exempts records of any commission designed to study base realignment or closure from FOIA.  I honestly do not know if there is a major controversy regarding records from such a commission.  If it were not related to the U.S. military, perhaps the bill would warrant greater scrutiny.  As it stands, I have no preference on its passage.

When Wednesday February 16, 2011 is done all four of these bills will likely have passed out of Committee on unanimous (or near unanimous) votes.

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