by Matthew Hardin
FME Law Counsel
In 2014, the United States Supreme Court held that Virginia’s Freedom of Information Act – which applies to all state and local government agencies in the Commonwealth of Virginia – could exclude non-citizens of Virginia without violating the federal Constitution. Thus, Americans who do not reside in Virginia have no access to Virginia’s public records at all.
In 2015 the Virginia Supreme Court struck another blow to transparency in the Commonwealth, holding in Department of Corrections v. Surovell that there is no duty under Virginia law to produce redacted records to the citizenry when only part of a document is exempt from production under the law. Thus, even Virginians will now be denied access to public records if even one word of those records is protected by any of the law’s dozens of exemptions. If a one-hundred page document has one sentence with allegedly private information in it, a Virginia agency can now withhold the entire record, rather than releasing the nonexempt pages.
Even worse, agencies in Virginia have engaged in a routine practice of demanding fees before even attempting to search for responsive records under Virginia’s Freedom of Information Act. Time and time again, E&E Legal and other requesters have been told that they must pay hundreds or even thousands of dollars before a Virginia agency or government official will determine whether or how many records they hold, let alone produce those records.
In an environment where the state and federal courts, as well as politicians and bureaucrats at all levels of state government have consistently erected barriers to transparency, it has become clear that the time for reform has come. Virginia has one of the country’s most dysfunctional open records laws, and change is very clearly in order. Luckily, the losing requester in the Surovell case was also a delegate in the Virginia General Assembly, so many observers are optimistic the Virginia legislature will finally pass a comprehensive reform bill.
Where should the legislature begin? Luckily, we now have several examples of what works and what doesn’t, both in other states and at the federal level.
Numerous states have open records laws that allow “any person” or even “any requester” to look at government records. Under these laws, E&E has been able to gather information in Kentucky, Arizona, New York, and California. Not only do laws that allow anybody to take a look at public records benefit the cause of transparency in general, and allow a robust discussion of policy alternatives, but such laws also benefit the citizenry in the individual states. Groups like E&E are able to publicize records on a much larger scale than many individual citizens can, and can ensure that more members of the public see those records than otherwise would. The time is right for Virginia to amend its Freedom of Information Act to ensure any individual, or even any non-profit group, may request and receive records in the Commonwealth.
Other states, as well as the federal government, also routinely redact records which contain both exempt and non-exempt information . In fact, that majority of the litigation under the federal Freedom of Information Act revolves around whether redactions have been properly done, maximizing the public’s access to its own records. This was even fairly common practice in Virginia prior to the Surovell decision, and was what the trial court in the Surovell case had ordered prior to being overturned on appeal. While Virginia’s Freedom of Information Act was passed after the federal FOIA law, and was clearly modeled upon it, the courts have interpreted the Virginia law much more narrowly, throwing up one barrier after another to citizens who only want access to the records their tax dollars have created. The Virginia legislature must make clear in any serious reform bill that exemptions are not blank checks to withhold documents, but rather narrow exceptions to transparency which can be applied only when other vital interests are at stake. If personal privacy rights must be protected, records should be redacted, not withheld wholesale.
Finally, the legislature must make clear what fees requesters can be charged for access to records under Virginia law. Right now, Virginia law allows agencies to charge a “reasonable” fee for records, but does not define what “reasonable” is, leaving politicians and bureaucrats ample room to abuse the statute. The legislature can fix this by creating fee waiver provisions for non-profits, such as those that already exist under federal law and in a handful of other states. The legislature can also create a fixed fee schedule for copying records.
States across America allow agencies to collect a fixed fee ranging from ten to twenty-five cents per page to copy government records. While far from ideal, a fixed fee schedule eliminates the ability of politicians to arbitrarily decide how rich a citizen must be to access public records.