Fix FOIA: The pandemic is throwing Virginia’s public records shortcomings into stark relief

Last month, as it was becoming apparent that Virginia was lagging other states in testing capacity and struggling to procure enough protective gear for long-term care facilities, first responders and hospitals, Gov. Ralph Northam’s administration announced it had reached a deal with global consulting firm McKinsey and Company to shore up those aspects of the state’s response.

“We realized that we need some help to make sure we are doing this in a systematic and effective way,” Secretary of Public Health Dr. Daniel Carey said at the time.

The Mercury’s Kate Masters later requested a copy of the contract via Virginia’s Freedom of Information Act and any reports McKinsey had prepared for the state for its more than half a million fee.

What we got back was laughably useless as a result of copious redactions (including, bizarrely and illicitly, the name of the McKinsey partner who signed the contract) and the Virginia Department of Emergency Management’s decision to withhold 120 pages of reports bought and paid for by taxpayers, citing “working papers” and trade secret exemptions.

We asked followup questions seeking more specific answers on the redactions and applicability of the working papers exemption and got this response yesterday:

“VDEM has reached out to McKinsey with a request that they narrow the scope of the redactions and McKinsey is reviewing the documents. Once we hear back from them, I’ll be able to answer your questions,” VDEM staffer Brookie Crawford wrote Thursday. Why VDEM appears to have outsourced its responsibilities under FOIA to a private company remains a mystery.

But it’s no secret that the working papers exemption in particular and its ever broader interpretation have become the bane of the Virginia press, good government groups and anyone else seeking insight into how decisions that affect all of us are made.

The working papers exemption is probably the single most abused provision in our #FOIA law — perhaps the only thing worse is the culture of secrecy that the law's toothless remedies fosters. https://t.co/5TxwR8SFJI

— Dave Ress (@DaveRess1) May 9, 2020

Taking advantage of a precedent set by former Gov. Tim Kaine, Northam’s then-spokeswoman cited the working papers exemption in denying the release of the governor’s calendar after Dominion Energy CEO Tom Farrell was spotted leaving the governor’s office in 2018 on the heels of Northam’s decision to pull two members off the State Air Pollution Control Board as it considered a crucial permit for the energy giant’s Atlantic Coast Pipeline.

Gov. Terry McAuliffe sought to invoke it in 2016 to prevent the release of a list of more than 200,000 people convicted of felonies whose voting rights he had restored. Loudoun’s then-commonwealth’s attorney, Jim Plowman, filed a FOIA request, then a lawsuit, finally getting the list as part of a settlement more than a year later, even though the state’s FOIA Council, in a nonbinding opinion, had long before said the working papers claim was erroneous.

“They’re giving me everything I asked for a year ago. They just dragged it out,” Plowman told The Washington Post. “It seems a bit unreasonable that you have to actually file a lawsuit to get something that people should have everyday public access to.”

But under Virginia’s FOIA law, pretty much the only way to find out whether the denial, redaction or withholding of information was valid is to sue.

“Not a whole lot of states have a working papers exemption, so in that, Virginia is near-unique and the exemption itself would seem to be the problem,” said Megan Rhyne, executive director of the Virginia Coalition for Open Government and an occasional Mercury commentary contributor. But, she noted, most states have some sort of legal privilege to shield some legislative and executive records from disclosure.

What makes Virginia very unique, however, is that “the exemption is at the disposal of far more people and positions.”

Consider the sheer number of individuals to which the exemption (which also includes the blanket term “correspondence”) could apply:

Working papers and correspondence of the Office of the Governor; Lieutenant Governor; the Attorney General; the members of the General Assembly, the Division of Legislative Services, or the Clerks of the House of Delegates and the Senate of Virginia; the mayor or chief executive officer of any political subdivision of the Commonwealth; or the president or other chief executive officer of any public institution of higher education in Virginia. … “Office of the Governor” means the Governor; the Governor’s chief of staff, counsel, director of policy, and Cabinet Secretaries; the Assistant to the Governor for Intergovernmental Affairs; and those individuals to whom the Governor has delegated his authority pursuant to to § 2.2-104. § 2.2-3705.7.

“The exemption then gets distorted by the people who claim it on behalf of this already expansive group, and then also by dumping way too much of what that group touches into the working papers/correspondence bucket,” said Rhyne, who has fought for changes to the law for years and who perhaps summed up the state of affairs best in a 2015 op-ed in the Suffolk News Herald: “We’re talking several hundred people here conducting the public’s business in near-total, sanctioned secrecy.”

Efforts to rein in the exemption, including after a lengthy study of FOIA between 2014 and 2016, fizzled. But, as part of that review, Rhyne prepared a list of several dozen examples of instances in which it was invoked, encompassing everything from a working group assembled by Gov. Bob McDonnell on uranium mining to cost-cutting plans at Christopher Newport University to a report on whether scientists at Eastern Virginia Medical School had broken the state’s anti-cloning law.

“We proposed changes that would have removed the correspondence part of the exemption. The proposal never made it into the final draft of the study’s omnibus bill,” Rhyne said. “During that study, we also supported (veteran Virginia government reporter) Dave Ress’ proposal to require production of exempt records after a decision on them has been made, as well as legislative proposals by (former Del.) David Ramadan and (Sen.) Chap Petersen to remove university presidents from the exemption. Neither of these made it into the final draft, either.”

Shielding huge quantities of records from disclosure isn’t the only problem. There’s also the exorbitant costs that some state agencies charge for filling what are routine requests elsewhere.

Monday’s Mercury story by Kate Masters, which revealed that state health officials have been giving individual COVID-19 patient information to local emergency officials, was also the result of a FOIA request filed with the Virginia Department of Health for a batch of emails. The initial quote for that request was $2,800, based on an estimated 40 hours of staff labor (at $70 an hour by a high-ranking state official) though we were able to talk the department down to a little more than $1,000.

What a bargain!

Implicit in Virginia’s system is the idea that processing records requests is an annoying extraneous task for which public agencies and government bodies are entitled to charge extra, instead of, as I would argue, a core function that we all already pay them to perform. In neighboring North Carolina, for example, public bodies may charge a service fee if making copies of records “involves extensive clerical or supervisory assistance,” but cannot charge a fee “to recover fees for time spent examining or removing confidential information from records.”

The Mercury has also been quoted similar eye-popping figures in requests for communications dealing with other aspects of the state’s response.  (A bill by Del. Danica Roem, D-Manassas, filed in her first session in 2018, that would have corralled some FOIA fees, among other provisions, was left in committee.)

In more mundane times, dust-ups over the FOIA law and provisions that allow public bodies wide latitude to set their own policies on which highly paid person can bill the requester for the privilege of withholding everything possible might seem esoteric.

But with the pandemic still raging, all our lives turned upside down and our state government still struggling to explain its testing lag while it makes decisions on when businesses and schools can open, how outbreaks are being triaged and how protective gear and testing supplies are being procured and distributed, among other aspects of the response, FOIA is the only serious tool available to pierce the veil.

And it’s hardly a wieldy implement.

Consider also the broadside from The Atlantic Thursday about how the Northam administration’s decision to include antibody testing in its overall testing numbers, first revealed by the Richmond Times-Dispatch, amounts to “juking” the stats.

The Atlantic fact checked Northam admin's claim that other states were also combining results from viral and antibody tests into the same stat.

"This is false."

How Virginia Juked Its COVID-19 Statistics: https://t.co/b7JiPijASv

— Ned Oliver (@nedoliver) May 14, 2020

Unfortunately, that imperative for disclosure about what the state is up to is running smack into a law that affords broad discretion for the highest levels of our government to keep the decisions they make under wraps and bill exorbitant fees for other information.

The governor, who has made much of his time as president of the Honor Court at the Virginia Military Institute, seems content to let some entities in Virginia operate on the honor system during the pandemic, including refusing to require long term care facilities to disclose COVID-19 outbreaks (or even say whether he thinks that’s a good idea) and extending the same courtesy to poultry plants where the virus is spreading among some of Virginia’s most vulnerable workers.

Scant information is publicly available on the governor’s COVID-19 work groups.

Our state government, however, isn’t supposed to operate on the honor system. We are entitled to reasonable information on what it’s doing on our behalf and with our money.

But because of the considerable shortcomings in our public records law, on many crucial decisions in a once-in-a-century crisis, we remain in the dark.