COLUMN: Protect and strengthen Virginia’s sunshine law

By John Edwards
In the Short Rows

This is Sunshine Week, a little-known observance of our right to know what government is doing.

It’s been described (by Wikipedia) as “a national nonpartisan collaboration among groups in the journalism, civic, government and private sectors that shines a light on the importance of public records and open government.”

More accurately, I think, it’s a reminder for those who value transparency in government that we still have far to travel to get it, and a reminder for those in government who favor secrecy that all they have to do is keep saying “no” and they’ll too often win.

A cynical view, admittedly. But it comes from one who spent the better part of four decades trying to strengthen Virginia’s Freedom of Information Act with, what in retrospect, were limited successes.

Not that we didn’t have successes, mind you, and the Virginia FOIA is stronger today than it was in the late 1970s when I — and like-minded people across Virginia of my generation — began lobbying legislators, badgering supervisors and council members and making a general nuisance of ourselves when information was withheld.

The successful changes to the law are worth noting. A 1989 legislative study committee, to which I had been appointed, toyed briefly with the idea of having closed sessions taped against possible later lawsuits in which a judge would have been able to hear directly what our illustrious honorables were discussing in private, and thus make a reasoned ruling on its legitimacy. My motion, at first successful, lasted exactly one day before Del. Bill Axselle, a veteran legislator, FOIA supporter and chairman of the study group, called to tell me that the idea would never fly, but that it opened the door to a compromise he had been contemplating — the certification of closed sessions.

The certification that only legitimate items were discussed in closed session became law and remains the rule today. It’s abused regularly, but it is, nevertheless, an improvement over nothing.

A little-known clause was added at the same time that requires — mandates, mind you — that a public official who thinks FOIA was violated in closed session is obligated to say so in public. It doesn’t make a damn what his or her fellow officials or their attorney tell him. He or she is legally and morally bound to spill the beans. Unfortunately, that rarely happens, but it’s there whenever a public official has sufficient intestinal fortitude to be honest about a closed session discussion.

The same study resulted in a tightening of the privilege previously enjoyed by public officials who could go in closed session for what was loosely termed “legal advice” from their attorneys pretty much at will. Now, there has to be an expectation of pending legal action to warrant those talks. Of course, you can drive a Mack truck through that language as well, but again, it was better than no change at all.

And, finally, the right to take government to court over suppression of records was broadened to allow cases to be brought in General District Court, where an individual can represent him or herself.

A second study a decade later was chaired by the talented Del. Chip Woodrum, D-Roanoke, and co-chaired by Bill Bolling, R-Hanover, a man who became lieutenant governor and should have become governor not many years later but had the opportunity denied by the party’s hard right wing just as all that stuff was beginning.

It was an honor to work on that study with both men, who joined forces to secure broad bipartisan support — something still possible back in those days — for creation of the Virginia Freedom of Information Council, which has ever since been a voice of reason in the tug of war over public information. 

The FOIA Council was shaped and for years led by Maria Everett, an attorney who worked for the Division of Legislative Services, where the council resides. Among other efforts, she traveled the state conducting training sessions for public employees, offering straight talk about what is required by the law.

Today, the FOIA Council is headed by another talented and knowledgeable attorney, Alan Gernhardt, and continues to offer FOIA advice to state and local government employees, Virginia citizens and members of the press. Contrary to popular opinion, it is private citizens, rather than reporters, who most frequently contact the council for advice.

So, yes, FOIA has been strengthened, but each year it is also assailed by those who would weaken it. Two major events have contributed to its troubles since the turn of the century. The first was 9/11, which resulted in a massive effort to protect sensitive information that might be helpful to terrorists. It was, and is, a noble effort, but like all such efforts, has been subject to abuse, and the exemptions to FOIA that have questionable national security value grows.

The second negative event was COVID-19. The need for government officials to have flexibility in carrying on their legal mandates was real and critical, and virtually everyone — certainly responsible journalists included — recognized it. Once you ease the rules, though, there are always those who don’t want to reinstate them, and that’s probably FOIA’s biggest current threat.

Thus, the battle continues, and it’s good once a year to reflect on its importance. Those of us who have retired from the jousting list salute those who remain.

JOHN EDWARDS is publisher emeritus of The Smithfield Times. His email address is j.branchedwards@gmail.com.

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