Thursday, November 20th, 2014

There's sunshine and darkness in Virginia's open-government laws

Virginia’s Freedom of Information Act begins with a proclamation that government officials should not be allowed to conduct their work under a veil of secrecy from the public they serve.

The law is often used by reporters during the course of their work, but it’s also an important tool for any Virginia citizen seeking records about how state or local governments are spending money and making decisions.

To kick off our coverage of Sunshine Week, we asked open government experts to discuss the strengths and weaknesses of Virginia’s FOI law.

On the plus side, Virginia presumes that government records are public and has a narrowly drawn list of exemptions. It also has stiff penalties to discourage public officials from illegally withholding information.

"Our law has teeth," said Ginger Stanley, executive director of the Virginia Press Association.

But there are also deficiencies. The Virginia’s FOIA gives law enforcement officials complete discretion in releasing criminal files, complaints and court orders. It allows agencies wide leeway in determining how much to charge people for producing requested records. And the lengthy law, with its many exemptions, might be difficult for the layman to understand.

To see how Virginia’s FOIA stacks up, we compared it to similar laws in Florida and Connecticut, two states that are recognized by experts for their strong open government laws. Virginia generally held up well, but there is room for improvement.

Who can access records?

Virginia’s FOIA only applies to Virginia residents and media outlets that publish or broadcast here. The laws in Connecticut and Florida are much more open, allowing anyone – state resident or not – to access government records.

The U.S. Supreme Court unanimously upheld Virginia’s in-state restriction last year in a case that arose, in part, from Chesterfield County’s refusal to make real estate records available to a California business. The court ruled that the law had only an "incidental effect" of the business and did not abridge interstate commerce.

What records can be withheld?

Laws in Virginia, Connecticut and Florida all contain presumptions that records will be available to the public. Each state applies its law to records that are kept on paper or electronically.

But legislators in each state have carved out many exemptions. The three states shield disclosure of ongoing criminal investigations, trade secrets and some personal information, among other categories. The language varies greatly among the states.

Connecticut has 27 exceptions to its law, Virginia has about 150 and Florida has more than 1,000. But the raw numbers can be misleading.

The exceptions in Virginia and Connecticut apply to all levels of state and local governments. So for example, when Virginia and Connecticut say sealed bids are exempt, it means the bids submitted to every agency are not available to the public until they have been opened.

Florida works differently and that’s why it has so many caveats. Its constitution does not allow blanket exceptions to be granted to all agencies. Instead, the legislature must pass a bill explicitly extending an exemption to an agency. That process prevents wide holes being written into the FOI law, according to Barbara Peterson, president of the First Amendment Foundation in Florida.

Florida’s legislature, for example, wants the state’s Department of Education to investigate cheating on standardized tests. That will require lawmakers to pass a bill shielding records generated by the probe from public disclosure, Peterson said.

Virginia’s exemptions, although numerous, are typically narrowly drawn, making it harder for agencies to withhold information, according to the Virginia Press Association’s Stanley.

She said she sees a huge flaw in Virginia’s law because of its provision giving law enforcement officials complete discretion over the release of criminal files.

"The practice in Virginia is if it’s discretionary, we’re not getting it," she said.

A recent example: The Richmond Police Department invoked the "discretionary" exemption this month in denying a request from the Richmond Times-Dispatch for access to all reports and investigative files relating to the death of Ava Marcus. The 36-year-old Church Hill woman died of injuries two weeks after a 2013 house fire that also killed her 18-month-old son. Before she died, Richmond Police had obtained warrants charging her with two counts of threatening to burn in connection with the blaze.

How much does the public pay for records?

Florida limits the price that governments can charge for copying records to 15 cents per sheet and allows a "reasonable service charge" if clerks need to take extraordinary steps to locate, collect and replicate the information.

Connecticut’s law limits state agencies to charging 25 cents a page for records. Local governments may not charge more than 50 cents a page.

Virginia charges an "actual cost" to produce the documents that can cause the price of a Freedom of Information request to soar. Governments may charge the per-hour pay rate of an employee to collect the data or a lawyer to review and redact confidential information.

Last year, for example, then- Attorney General Ken Cuccinelli’s office told the Roanoke Times that it would cost at least $14,400 to fulfill an FOI request. The newspaper sought information about communications Cuccinelli and his staff had with former Star Scientific CEO Jonnie Williams Sr. about a tax dispute involving the company. Cuccinelli’s office told the Roanoke Times it would charge $53.65 an hour to sift through its files and emails.

A week later, the office told the newspaper that no such records existed and waived all fees.

How are FOI laws enforced?

In Virginia and Florida, citizens who believe they were improperly denied access to records must decide whether to contest an agency’s decision in court. There’s a risk: If a citizen wins his suit, the agency must reimburse his legal costs; if the citizen loses, he absorbs the costs.

The Virginia Freedom of Information Council, a state agency, offers advice on whether requests for public information have been improperly denied. The council, however, will not offer testimony in court.

In Connecticut, citizens don’t risk footing bills to get their case heard. Anyone can appeal an agency’s decision, without cost, to the state’s Freedom of Information Commission. The panel issues legally binding decisions on whether government agencies must release public information.

If a Connecticut official wants to appeal a commission ruling to release information in court, then the commission foots the bill for defending its decision, not the citizen.

Virginia officials who "willfully" deny access to public records face fines of $500 to $2,000 for a first offense; $2,000 to $5,000 for each subsequent offense.

Alan Gernhardt, a staff attorney at the Virginia Freedom of Information Advisory Council, said the penalties require "a high level of proof" and have been rarely assessed.

But Stanley said the possibility of fines deters officials from needlessly withholding information.

In Florida, the fine for failing to disclose information tops out at $1,000 and up to six months in jail. Connecticut can impose penalties ranging from $20 to $1,000.

What could improve Virginia’s law?

Stanley said her organization would like to see an end to the control law enforcement officials are given in releasing information. "We would love to see records being required to be released instead of being discretionary for release," she said.

And she said the law is written in overly complex language and poorly organized.

"A citizen should be able to read the law and be able to, in layman’s terms, understand it.