Change the culture of contempt for FOIA

May 20, 2021 12:02 am

Virginia’s state flag flies in Richmond. (Ned Oliver/ Virginia Mercury)

One of the coverage areas the Mercury set out to focus on when we launched nearly three years ago was Virginia’s Freedom of Information Act and the issues that perennially swirl around it like the constant cloud of dirt that follows Pigpen from “Peanuts.”

Virginia’s open records law doesn’t just suffer from problems with its text — in the form of loopholes, exemptions and provisions allowing exorbitant charges for records that belong to the taxpayers — but also from a general culture of contempt for the concept on the part of some government officials.

That much was apparent Tuesday during a subcommittee meeting of Virginia’s Freedom of Information Act Advisory Council, which was hearing testimony on one bill that would attempt to curb the high costs some public bodies impose for records and another that opens up police disciplinary records to public scrutiny.

Catastrophizing is common at the Capitol. Change this code section a little or tweak a word here or there and all the demons of unintended consequence will come roaring out of Pandora’s box, lobbyists often argue.

A Virginia lawmaker wants to make FOIA requests cheaper or free. Some government and police groups aren’t happy about it.

Even by those standards, the squalling from opponents — chiefly local government lawyers and representatives from police agencies — made it clear that some of them view FOIA not just as a headache they’d rather not deal with but as a dangerous tool for the citizenry to bedevil their betters at county and city governments, sheriff’s offices and police agencies.

“It presents an invitation for individuals angry at local government for any reason to harass the local government and to abuse the law out of spite,” Martin Crim, a lawyer who represents several Northern Virginia localities, testified in his written remarks on the bill to reduce FOIA costs. “Each locality I have worked for has had at least one FOIA antagonist at some point who filed multiple document requests for no practical purpose, so it cannot be said that the local governments must have done something to deserve such abuse.”

Crim also seemed to suggest allowing localities to put high price tag on records requests was a necessary barrier to frivolous or annoying requests, pointing to one person who asked for all records dealing with Lake Manassas, which led to a cost estimate of around $20,000. (Public bodies are only allowed to impose “reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying or searching for the requested records.”)

“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.

In a similar vein, Virginia Tech Police Chief William “Mac” Babb, complained about people who “just FOIA to be FOIA’ing” and said the bill would encourage records requests “without a specific purpose.”

Guess what? If that guy wants to get all the records related to that lake and decorate his house with them, it’s government’s job to provide them in a timely and cost effective way. It is not government’s job to decide whose record request is in good faith or “for a purpose” and whose isn’t, as Del. Danica Roem, D-Manassas, who introduced the legislation, noted. Motives don’t matter when it comes to FOIA.

“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.”

Implicit in all this pushback is the idea that fulfilling records requests is a nuisance these functionaries barely tolerate instead of a core part of the public services they exist to provide.

“Another way to look at the impact of HB2000 is that it shifts the cost of providing public records from the requester to the taxpayers. I understand why the press association wishes to minimize its expenses, but often the documents requested are of no interest to the public and do not contribute to public understanding of government,” Crim said.

People who request records usually are taxpayers, and in many cases what we’re subsidizing — with FOIA fees that can run into the hundreds and thousands of dollars — is years of inefficient record keeping, outdated computer and software systems that make finding records hard and public employees like Crim who seem to think they should get to decide which requests are and aren’t worthy.

“I do think the overall tone of what we heard today, more or less, is heavily in favor of the protectors of that information,” said Roem, a former newspaper reporter who has been pushing to reform FOIA. “The people who actually have that information. As opposed to the natural default being public accessibility. That’s where I want to focus the conversation here.”

But for her and other reformers, Tuesday’s meeting shows that it’s not just about changing the law, it’s also about changing some obnoxious attitudes in some obstinate bureaucrats.


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Robert Zullo
Robert Zullo

Robert spent 13 years as a reporter and editor at weekly and daily newspapers and was previously editor of the Virginia Mercury. He was a staff writer and managing editor at Worrall Community Newspapers in Union, N.J., before spending five years in south Louisiana covering hurricanes, oil spills and Good Friday crawfish boils as a reporter and city editor for the The Courier and the Daily Comet newspapers in Houma and Thibodaux. He covered Richmond city hall for the Richmond Times-Dispatch from 2012 to 2013 and worked as a general assignment and city hall reporter for the Pittsburgh Post-Gazette from 2013 to 2016. He returned to Richmond in 2016 to cover energy, environment and transportation for the Richmond Times-Dispatch. Contact him at [email protected]