Open government

Published 9:07 am Saturday, March 13, 2010

Virginia’s Freedom of Information Act guarantees citizens and journalists the right to attend public meetings and obtain public records, with very limited exceptions. What’s amazing is that this wasn’t always the law; Virginia adopted its Freedom of Information Act in 1968, two years after Congress enacted the federal Freedom of Information Act.

Before that, governments could do pretty much as they pleased when it came to inquisitive citizens or pesky journalists. A city council could meet in private anywhere, anytime and for any purpose. A county administrator could pick which, if any, records that he cared to release in response to a reporter’s request.

Not everyone rejoiced about the new laws. According to Bill Moyers, President Johnson “had to be dragged kicking and screaming to the signing ceremony. He hated the very idea of the Freedom of Information Act; hated the thought of journalists rummaging in government closets and opening government files; hated them challenging the official view of reality.”

The Freedom of Information Act turned things upside down. With limited exceptions, government documents were now available for review and copying. Meetings of public officials were presumed to be open to the public, and closed meetings were only permitted under limited circumstances. After the Freedom of Information Act became law in the summer of 1968, things did change; for example, Virginia Beach’s City Council began letting the public attend its work sessions. But widespread awareness and compliance took longer.

When I started working in local government in the ‘90s, there were still officials who saw the statutory response times for responding to document requests as mere suggestions. Withholding documents and closing meetings were opportunities for creative interpretations of exemptions.

As a new lawyer, I found these attitudes troubling, if only for pragmatic reasons. The act is very obviously and consciously tilted in the favor of citizens and journalists. A FOIA suit is tough to defend. The government has the burden of convincing a court that a document doesn’t have to be released or that the public may be excluded from a meeting. Public officials who violate the act can be assessed monetary penalties, payable from personal funds. When the government loses a FOIA case, it often has to pay the other side’s attorney fees.

Beyond penalties and legal fees, noncompliance with the act creates dreadful citizen and media relations problems for governments. Plenty of matters have the potential to be controversial.  Not being forthcoming with information guarantees controversy and suspicion.

My job got somewhat easier, and the goals of the FOIA came closer to fruition in 2000, when the General Assembly established the Virginia Freedom of Information Advisory Council. The Advisory Council does excellent work in providing training for government officials and answering citizens’ questions. It also issues opinions that provide guidance on tough questions and often resolve disputes without litigation.

Since 2000, a number of Virginia cities and counties have established freestanding FOIA offices to handle requests for documents. Even smaller communities, such as Blacksburg, have online information about requesting documents. The development of the Internet continues to make government documents more available than ever, with online meeting agendas and links to PDF copies of ordinances and staff reports. E-mail provides for easily searchable records of government communications.

So after 42 years of FOIA, where do local governments go from here? Local governments will always need to continue educating officials and employees in the basics. Every employee who works with records should know how to respond to a records request. Elected officials should know what constitutes a public meeting.

But good government requires going beyond the basics, so I close with the following observations:

If you work in government, remember that just because a record can be withheld as confidential doesn’t mean that it should be. Be judicious in charging for search time and copies; FOIA is a cost of doing business, not a revenue enhancer. Realize that most meetings should be public and that closed meetings should be conducted sparingly.

If you want local government records, think about how you pose your request. Try to focus your request; asking for all records on a certain subject from the beginning of time will usually be costly. Save copying costs by reviewing the records in person. And while the reason behind your request for public records is irrelevant, many times it will be beneficial to discuss your request to facilitate a response.