Open government losing in all three branches

Published 11:34 am Wednesday, September 23, 2015

by Megan Rhyne

This has been a long time coming. I haven’t wanted to write this column because I am a fairly optimistic person and because I try to look for the good in things. I’m no pollyanna but, when voicing my opinion, I try to give credit where credit is due.

But today, I’m not feeling particularly charitable. Today, I feel that I am losing Virginia.

Thursday, the Virginia Supreme Court issued an opinion that threw into doubt the government’s duty to redact records. Under the court’s holding, it may be possible for an entire record to be withheld if it has only some exempt material in it.

But there is more. Much much more.

• The Supreme Court of Virginia’s administrative arm refuses to disclose a database of court case information that it (a) used to give out, and (b) maintains as a publicly accessible case-by-case search system on its website.

• The governor’s office ordered an investigation on the confrontation between ABC agents and a University of Virginia student that left the latter bloodied, then adamantly refused to release it, misstating the Freedom of Information Act (FOIA) by saying the law prohibits the report’s release.

• According to a report last spring of all the bills defeated in the House of Delegates during the 2015 session, 76 percent were disposed of either without a recorded vote or without even being considered by a committee or subcommittee.

• The attorney general’s office quoted a price of more than $40,000 for an admittedly broad request, but primarily based on the fact that the agency has no centralized way of searching electronic records.

• With the lobbying help of the telecommunications industry and public utilities, the State Corporation Commission successfully beat back efforts to place it under FOIA.

• In fewer than four years, the Virginia Supreme Court has issued six FOIA opinions, all of which come down on the side of confidentiality.

And no, of course, it’s not just state government.

• Many clerks of court are refusing to disclose the data that populate the aforementioned Supreme Court database. Some have complained newspapers will use the data to make money, and some claim the clerk’s office isn’t subject to FOIA at all, despite clear language in FOIA that clerk’s offices are.

• In just the past few months, I’ve heard of a member of an elected board saying the board met in closed session “to get our heads together;” an agricultural board that went for years — years — without taking minutes; and numerous board members incorrectly claiming they are prohibited by law from speaking publicly about what was said in a closed meeting.

• I’ve seen a mayor’s office invoke the federal FOIA exemption for the president’s executive privilege to justify withholding records, and a police department refuse to send records to a Gmail account. I was charged $16.98 for three one-page fire inspection reports created just two weeks earlier.

Meanwhile, courts and government officials ignore the thoughtful, well-reasoned and well-informed opinions of the Virginia Freedom of Information Advisory Council.

And members of the council’s subcommittees reviewing FOIA’s exemption as part of a three-year study have shown little appetite for challenging the status quo.

Let me acknowledge that it is the bad apples in the bunch that bring down the hard-working, honest and diligent government employees and public servants out there. Unfortunately for them, the bad apples are frequently the ones in the highest levels of authority. They set the tone; they set the precedent.

When the governor’s office says FOIA prohibits release of a record (FOIA’s exemptions are discretionary, not mandatory), other agencies or political subdivisions may be emboldened to misstate their duty to disclose. When the General Assembly doesn’t record votes, a school board may pick up the practice.

When the courts say they aren’t even the custodian of a database that is literally in their possession, a city may decide its salary database is off-limits, too.

This is it, folks. I believe this is a critical juncture. On one side is a desire to be better and to improve. On the other side is an acceptance that we do not deserve to be informed.

I know where I stand. I cannot lose Virginia. What about you?

MEGAN H. RHYNE is the executive director of the Virginia Coalition for Open Government. Contact her at