Motives shouldn’t matter when it comes to FOIA requests

In a tumultuous 2020, when it seems like everything is fraying at the seams, there are still certainties.

Death. Taxes.

And Virginia officials flouting the spirit and letter of the state’s Freedom of Information Act — which says it “ensures the people of the commonwealth ready access to public records in the custody of a public body or its officers and employees” but too often fails to deliver on that simple and important mission.

Consider the perverse spectacle of a watchdog agency, the Office of the State Inspector General, intended to “maximize the public’s confidence and trust in state government by promoting and practicing the highest level of integrity, efficiency, effectiveness and economy,” refusing to release details of its investigation into the latest misdeeds of the Virginia Parole Board.

Crazy as it may sound, it’s hard to maximize the public’s confidence when you won’t tell the public what you’ve discovered.

As The Associated Press and other outlets reported, after receiving a tip through the state’s Fraud, Waste and Abuse Hotline, the inspector general substantiated five allegations that the parole board didn’t properly notify prosecutors of decisions and seven allegations that it failed to “endeavor diligently” to contact victims. But details were almost entirely redacted in documents provided to the AP and other news outlets. Here’s a very representative sample of what the OSIG sent me last week:

“I share the public’s desire to achieve as much transparency as possible and encourage you to work with the Office of the Attorney General to release as much information as you are legally able to,” Secretary of Public Safety Brian Moran wrote in an letter to Inspector General Michael Westfall (as reported by the Richmond Times-Dispatch) about Westfall’s decision to withhold, both from the public and Virginia lawmakers, the details of what exactly the Parole Board had done this time.

At a news conference Tuesday, though, Moran insisted it was against the law to divulge anything else.

“The report itself is property of OSIG,” he said. “It is their authority, obligation, responsibility to determine whether or not that gets released. And by code, it contains information that is not FOIA-able.”

Moran also suggested Westfall is refusing to release the report to the Republican lawmakers who are demanding to see it because the last time he did that — involving an investigation into another Parole Board decision involving convicted cop-killer Vincent Martin — they released the information to the public.

“The initial report regarding Mr. Martin was provided to a select number of legislators. Those legislators immediately released the report,” Moran said. “I don’t want to speak for Mr. Westfall, but I suggest that is his reluctance to release that again to those legislators for fear they will publish it publicly which is forbidden by the code section.”

Never mind that Westfall evidently decided the last time around, as the Republican lawmakers argued, that the law required him to turn over the report to the legislators, since state code says explicitly that the IG “shall notify the Governor’s chief of staff, the Speaker, Majority Leader, and Minority Leader of the House of Delegates, and the President pro tempore, Majority Leader, and Minority Leader of the Senate of problems, abuses, or deficiencies relating to the management or operation of a state agency or nonstate agency.”

Asked why his office wouldn’t release it’s own copy of the report, Moran again insisted that is “forbidden by code.”

The Inspector General’s Office says that because the Parole Board is exempt from the FOIA law, the report it prepared on the Parole Board’s wrongdoing can’t be released without the board’s consent.

“Note that all Virginia Parole Board information provided to OSIG to conduct this administrative Fraud, Waste and Abuse Hotline investigation is exempt from FOIA under Code of Virginia §§ 2.2-3703(A)(1) and 2.2-3705.3(7). The Virginia Parole Board maintains its FOIA exclusions and has not waived its FOIA protections,” Westfall wrote in an email to me last week.

In effect, the OSIG is (at least in part) invoking an exemption it itself does not enjoy on behalf of another agency. It is also muddying the waters with another code section that exempts “investigative notes, correspondence and information furnished in confidence and records otherwise exempted by this chapter or any Virginia statute, provided to or produced by or for …  the Office of the State Inspector General with respect to an investigation initiated through the Fraud, Waste and Abuse Hotline.”

The same section, however, says “Information contained in completed investigations shall be disclosed in a form that does not reveal the identity of the complainants or persons supplying information to investigators. Unless disclosure is excluded by this subdivision, the information disclosed shall include the agency involved, the identity of the person who is the subject of the complaint, the nature of the complaint and the actions taken to resolve the complaint.”

My take: The IG's records are the IG's records. The Parole Board's records are the Parole Board's records. One does not claim exemptions on behalf of the other. pic.twitter.com/DLcVhrxLsl

— Megan-Walking on Sunshine-Rhyne (@opengovva) October 7, 2020

“I don’t see those redactions being supported by the exemption,” Megan Rhyne, executive director of the Virginia Coalition for Open Government and an occasional Mercury guest columnist, said in an interview.

Here’s what Alan Gernhardt, executive director of the Virginia Freedom of Information Advisory Council, told me:

“Speaking generally, many exemptions in FOIA are limited both as to the type of record covered and the public body that may invoke the exemption. And when that is the case, due to the narrow construction policy, only the public body identified in the exemption may use such a limited exemption,” Gernhardt wrote in an email. “Similarly, while the Parole Board itself is largely exempt from FOIA, OSIG is subject to FOIA and records OSIG prepares, owns, or possesses in the transaction of public business would be public records by definition. Whether such records must be disclosed would depend on their contents and whether any exemptions or prohibitions apply, just as with any other public records.”

I asked both Moran and a spokeswoman for Gov. Ralph Northam what code section he was referring to in saying it was forbidden to release the information. I didn’t get an answer. However, since he invoked the FOIA law in his remarks, I inquired whether there was anything in the exemptions cited by the OSIG that prohibited the release of the information. Both Rhyne and Gernhardt, FOIA experts both, said no.

“If they’re claiming it is prohibited somewhere that would be outside of FOIA,” Gernhardt said.

If you’re inclined to take a charitable view, Moran could be making a mistake I’ve seen over and over in my career. Sometimes public officials equate an exemption, a provision against mandatory disclosure, with a prohibition.  But, then again, one of the sections of the FOIA law OSIG cited starts with this: “The following information contained in a public record is excluded from the mandatory disclosure provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law.”

Long story short, Moran or Westfall could disclose the report, unless there’s a law somewhere (which they haven’t cited) that says they can’t.

As far as OSIG’s redactions, we don’t know whether they’re lawful because we don’t know what’s been redacted.

Like with other FOIA disputes, the only way to way to find out is to file suit and go to court, like a Northern Virginia man did when he got a stiff arm by Speaker of the House Eileen Filler-Corn, D-Fairfax, as he sought documents on her decision to pull statues and busts of Confederates in the dead of night from the Capitol.

A judge last week slapped the speaker with a $500 civil penalty and roughly $2,000 in attorney’s fees. Her offense? When asked for records related to the hiring of the company that moved the artifacts and the cost, among other documents, the speaker’s office replied that they did not exist.

“After she said the requested documents did not exist, I said, ‘That’s impossible, let me file the FOIA request with the House clerk and a FOIA request with the Department of General Services,’ and eventually I got the truth, but not from her,” David Webster told WTVR.

A spokesman for Filler-Corn seemed to imply that the fact that she was removing Confederate iconography should give her a pass on the FOIA transgression.

“When the speaker made the decision to remove the statues and artifacts honoring the Confederacy from the Capitol, it was understood that it would upset and agitate some people in Virginia and throughout the country,” Kevin O’Holleran told WTVR. “First, the plaintiff has received all the documents he requested from the House Clerk’s Office. The office complied and responded to the plaintiff’s request in this matter as was believed to be required. The Clerk’s office provided these documents to members of the General Assembly, the media and any individuals who have asked. We understand that those who take action to make the commonwealth more equitable will continue to receive these types of requests, but in no way will it inhibit any work we are doing on behalf of the people of the commonwealth.”

Here’s what Richmond General District Court Judge Tracy Thorne-Begland, who imposed the fines, had to say: “It just strains credulity here to conclude that the speaker was unaware of the existence of these records and unaware of at least a starting point as to where they were. I would agree that she has no duty to make an expansive recommendation, but when she has directed an action that was complied with by her clerk that specifically references the hiring of a company, I think it’s unreasonable to conclude that she was unaware of the existence of a contract and I think it’s unreasonable to conclude that she should not have made a bare-bones effort to locate the government agency that had these documents.”

Rhyne said the penalty imposed on Filler-Corn was a rare FOIA-related punishment for a Virginia public official.

“The penalties do require a finding that the violation was done willfully and knowingly. The inclination of judges has been to assume that their fellow public servants are just making honest mistakes,” she said.

And, like the cases illustrated above, FOIA fights often have a partisan dimension.

“FOIA tends to be supported by whoever’s ox is not being gored,” Rhyne said. “It’s the party in power in that’s usually more resistant to FOIA than the party’s that not in power. … When people use it as a sword, the reaction is ‘Oh it’s not valid because it’s politically motivated.'”

Of course, that shouldn’t be the case. FOIA should apply equally no matter who the requester is, no matter why they want the records. But with the law shot through with exemptions and loopholes and “see you in court” as the only recourse for the jilted, it’s probably an inevitable eventuality.

While you could choose to see the Filler-Corn example as a case of the system working as it should, it still took attorneys, a judge and weeks of delay to work through that system.

Creating a quick-acting arbiter, either by empowering a “FOIA ombudsman” in the Office of the Attorney General as Del. Danica Roem, D-Prince William, has (so far unsuccessfully) proposed or by giving our existing FOIA Advisory Council more resources and teeth to issue binding rulings, as Rhyne favors, would go a long way towards deterring the types of stonewalling that’s all too common in the commonwealth.