by Graham Moomaw, Virginia Mercury

At a meeting of the Virginia Freedom of Information Act Advisory Council last month, the panel’s chairman held a brainstorming session on pressing FOIA issues.

Two dramatically different viewpoints emerged in the responses, highlighting the challenges of changing Virginia’s spotty transparency laws to better balance the public’s right to know with governments’ ability to function.

Several FOIA Council members in seats reserved for citizens floated ideas about increasing transparency and making it easier for Virginians to see what public officials are doing. But the ideas from council members who represent government interests mainly focused on ways to make FOIA less of a hassle for government bodies and potentially allow more secrecy.

“I just found it kind of sad that there seemed to be just such antipathy to people using this statutory right,” said Megan Rhyne, who attended the meeting as executive director of the Virginia Coalition for Open Government. “The number of things that they were asking to have reviewed was kind of indicative of how the FOIA Council has become much more government-leaning.” 

Del. Marcus Simon, D-Fairfax, the FOIA council’s chairman, opened the discussion about FOIA priorities after noting that the council had leeway to set its own priorities this year because the General Assembly hasn’t given the advisory body a big workload of topics to study. The council didn’t take any major action at the July 17 meeting, but the conversation could tee up topics for future meetings and potential recommendations to the General Assembly.

Lola Rodriguez Perkins, the county attorney in Surry County who was recently appointed to fill the FOIA Council’s seat reserved for local government representation, relayed a concern that existing law doesn’t do enough to maintain the secrecy of closed sessions held by city councils and county boards. Transparency exemptions allowing closed meetings on sensitive topics, she said, should extend after the meeting to prevent the public from finding out what occurred behind closed doors.

“Individuals come out of closed session and then have conversations with members of the public or send emails to other members,” Perkins said, noting that emails recapping what happened in a closed session wouldn’t necessarily be exempt from FOIA.

Simon indicated he had some reservations about such a “broad expansion” of closed session secrecy.

“I think I understand the concern,” Simon said. “I’m not sure I share it necessarily.”

Perkins suggested other changes to the law to prevent people involved in lawsuits against government bodies from filing FOIA requests after the court-overseen document discovery process has concluded. She also floated the idea of giving school officials 45 days to respond to some education-related FOIA requests to align with longer timelines laid out in the federal Family Educational Rights and Privacy Act (FERPA). The federal law lays out rules for maintaining the privacy of student records while allowing parents access to information about their own child. Virginia already has a public records exemption that protects information about individual students.

Virginia’s FOIA law allows up to five business days for an initial response to a records request. Deadline extensions are allowed for particularly complex or time-consuming requests.

Lindsay Fisher, a lawyer in Gov. Glenn Youngkin’s office who was appointed to fill a citizen seat on the council, raised concerns about “abuse of process” by people filing too many FOIA requests that seem to deal with the same topic.

“I’m thinking of one specific example that I’ve seen in a past life of someone who is making the same request multiple times but [it] is worded differently,” Fisher said, adding that prolific FOIA requesters can “gum up” government offices and make it harder to respond to other inquiries.

Other council members suggested ways FOIA could be improved to benefit the public.

Maria Everett, the FOIA Council’s former executive director who recently took a seat on the board, suggested beefing up rules on meeting agendas to make it harder for public bodies to take action on big policy items without letting the public know it’s coming. She pointed to the city of Petersburg’s surprise selection of a casino developer earlier this year after a closed session, when the public had been led to believe the city was following a competitive bidding process and had no notice such a major decision was being made that day.

Chidi James, a personal injury lawyer whose firm was recently involved in wrongful death litigation against the University of Virginia over the mass shooting at the school in 2022, suggested revisiting the list of FOIA exemptions that “seems to grow and grow and grow.”

“I just think it’s a good idea just to regularly take a look at what they are and see if we might have too many,” James said.

UVA officials have refused to release a report on the shooting prepared by an outside law firm. The Daily Progress newspaper in Charlottesville is challenging that decision in court. 

Simon, the state legislator who leads the FOIA Council, offered his own recommendations for how transparency could be strengthened. 

He said he’d like to reexamine the widely invoked “working papers and correspondence” FOIA exemption that can be used to block the release of communications involving the governor’s office, General Assembly members, university presidents and local government leaders. Simon also said he’d like to look at how public bodies handle FOIA exemptions that are discretionary, meaning officials can choose to release the records or choose not to disclose them.

“The feedback I’ve gotten is that whenever there’s a discretionary disclosure issue the agency or public body tends to default to non-disclosure,” Simon said.

Asked for his takeaways on the FOIA Council’s discussion, Simon said this week that he’s convinced the state needs to “change the culture” of how FOIA is handled “at all levels of government.”

“I wish some of the constituencies represented were as concerned with how to make records accessible as they were with the question of how to deal with outliers or ‘frequent flier’ types who seem to be a thorn in their sides,” Simon said. “I think there are probably things that can be done that can solve both problems.”

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