To make the case for why Virginia’s public-records law needs to work better for reporters and citizens alike, Del. Danica Roem told the story of a constituent, Stephanie Minor, who Roem said spent seven months fighting Prince William County Public Schools for access to video footage showing her autistic daughter being dragged off a school bus.
For Minor to see what had happened, the school system wanted her to pay $2,500, down from an initial estimate of $8,800 for the video and staff emails, to cover its costs of producing the video and redacting it to blur out other students.
“I could get an intern at George Mason University to do it for 10 bucks,” Roem, a former journalist and Democrat from Manassas who has made FOIA reform a priority issue, told the Virginia FOIA Advisory Council’s records subcommittee Tuesday.
To reduce the chances of others facing prohibitively expensive FOIA fees while seeking access to government records, Roem has introduced legislation requiring public bodies in Virginia to fulfill records requests for free as long as they take no more than two hours of staff time. For more complex requests that take longer, public bodies could only charge the hourly rate of the lowest-paid employee working on the request or $33 an hour, whichever is lower. To try to prevent overwhelming officials with FOIA requests, Roem’s bill specifies that the free staff time only applies to the first four requests made by any one person within a 31-day period.
“There’s a consensus that the current FOIA fee structure is not working,” Roem said.
State law currently allows all public bodies, from state agencies to school boards to police departments, to “make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying or searching for” government records. In the most simple requests, like asking for copies of lawsuits at courthouses, that means the requester has to pay a small fee to cover printing costs. In complex cases involving sensitive internal records that take significant research time and scouring by lawyers before release, it can cost thousands of dollars to gain access to a government paper trail.
For example, the Virginia Department of Health initially cited a cost estimate of $2,191 when The Virginia Mercury sought records related to COVID-19 outbreaks in poultry plants last year. The agency waived some of those costs, settling on a final bill of $1,095.
Though some public bodies are willing to work with requesters to reduce costs, critics see high price tags as a tactic to make FOIA requests so expensive some requesters decide it’s simply not worth spending the money to find out what public officials are up to.
But skeptics of Roem’s bill speaking at Tuesday’s meeting suggested FOIA requests are being used to “harass” public officials. The wrong type of reform, they said, could make things worse.
John Jones, executive director of the Virginia Sheriffs’ Association, said he’s aware of sheriffs who receive multiple records requests per day.
“And many of these sheriff’s offices are very limited in staff,” Jones said. “And the cost of it has been the only thing maybe that has deterred some of these.”
Phyllis Errico, an attorney representing the Virginia Association of Counties, said the group wouldn’t endorse Roem’s proposal, though it agrees FOIA fees could use a study, adding that it can take “hours and hours” for governments to find records responsive to a given FOIA request.
Martin Crim, a Northern Virginia lawyer who represents several local governments, said he was aware of one requester who asked for all records dealing with Lake Manassas, which led to a cost estimate of around $20,000.
“The idea there is if you’re going to give people carte blanche to make local government turn over documents, they’re going to use that tool inappropriately,” Crim said, adding that he sees many FOIA requests as arising from personal vendettas, not matters of public interest.
Virginia State Police Lt. David Ostwinkle, said his agency saw close to 5,000 FOIA requests in 2020, most taking less than two hours.
“Under that proposal, essentially the entire cost of our operation would be absorbed without charge for the requested materials,” Ostwinkle said.
In response to the feedback, Roem said the idea that the government can use cost estimates as a deterrent is the very problem her bill seeks to fix. It’s not the government’s job, she said, to try to determine which requests for public records are being made in good faith and which ones aren’t.
“If we are going to have a bias in that regard, it should be that we err on the side of acknowledging that public documents are public,” Roem said. “As opposed to the hassle, time and cost to government.”
The subcommittee didn’t take any formal action on Roem’s proposal Tuesday, but the full FOIA Council is expected to make a recommendation for the 2022 General Assembly session. Subcommittee members said they wanted more information on how FOIA fees work in other states ahead of another meeting next month.
Though Roem acknowledged some details on her proposal are up for debate as she tries to hammer out a compromise, the Virginia Coalition for Open Government and the Virginia Press Association support the concept of making simple FOIA requests free.
“VPA believes that providing public records to the public is an essential part of an elected government’s responsibility,” said VPA Lobbyist Mark Hickman.