Editors’ Note: Reposted, with permission, from the Virginia Mercury, March 28, 2022. https://www.virginiamercury.com/2022/03/28/in-its-arrogance-virginia-government-continues-walling-off-the-publics-right-to-know/
By Bob Lewis
It may sound almost laughable now – a cruel joke, to be sure – but there was a time when Virginia had a decent Freedom of Information law. Maybe not the strongest, but workable.
The commonwealth first enacted laws to reasonably make government documents and meetings open to the public in 1968. It was a time when Americans were becoming rightly distrustful of what their government wasn’t telling them, particularly about the war in Vietnam and unrest at home.
More accurately, Virginia’s Freedom of Information Act put very specific restraints on government regarding what information it could hold secret.
When I first became a resident Virginia journalist nearly 28 years ago, the FOIA law was a somewhat potent tool for prying loose government records and documents that could effectively debunk what the state’s spinmeisters were saying – or, in some cases, confirm it.
That’s before Official Richmond got tired of being accountable to the electorate and began writing new exemptions into the law each passing year. That was before those in power began contorting the law’s “governor’s working papers” exemption to cloak whatever it pleased in secrecy.
That was before those in power began contorting the law’s “governor’s working papers” exemption to cloak whatever it pleased in secrecy.
Each quadrennium, one hopes that a new governor will take a broader, more egalitarian view of public information than his predecessor. And each quadrennium, we’re disappointed.
The Virginia Mercury’s Kate Masters pointed out the latest example in reporting last week on how Gov. Glenn Youngkin’s administration is reflexively denying FOIA requests pertaining to Youngkin’s top policy objectives – pledges central to his election last fall. The Mercury sought records regarding his orders to make masking optional and banning instruction on “divisive concepts” (code for critical race theory) in public schools.
What the Mercury got back from the governor’s office and relevant agencies and boards was a handful of denials. The predominant justification, cited in letters explaining why they were withheld, was the working papers exemption. The exemption itself, written into the law a quarter of a century ago, isn’t the problem. It’s the way it has been interpreted and abused, far beyond its original intent, to suppress legitimately open records and information.
The [working papers] exemption itself, written into the law a quarter of a century ago, isn’t the problem. It’s the way it has been interpreted and abused, far beyond its original intent, to suppress legitimately open records and information. . . . And, for good measure, there’s often the universal attorney-client privilege exemption, which applies not just to the government but is a strict ethical imperative for counsel in every legal representation.
So if you’re curious about what the governor was being told about the practical health care consequences of unmasking pupils as the Omicron variant of the coronavirus was running rampant – sorry: working papers.
If you want to learn firsthand about how the new Department of Education leadership intended to purge the so-called divisive concepts and equity guidance for local schools — including perhaps how four centuries of slavery and America’s troubled racial past have influenced public policy – again: working papers.
And, for good measure, there’s often the universal attorney-client privilege exemption, which applies not just to the government but is a strict ethical imperative for counsel in every legal representation. It supersedes any FOIA request and can help make a denial airtight if a lawyer engaged in the matter was copied on any correspondence or was a party to any meeting – virtual or otherwise – for which notes were taken and a record was created.
And if neither of those quite shuts down an inquiry, there’s money.
And if neither of those quite shuts down an inquiry, there’s money. State agencies years ago began attaching prohibitive cost estimates to deter discomfiting public records requests. Supposedly, they can’t exceed the actual costs of staff time, copying, collating, and whatnot, but toss in legal review by staff attorneys – a step necessary to determine how much, if any, of your requested information isn’t subject to some exemption – and you’re easily looking at a five-figure bill.
So at that point, generally a decision must be made whether to give up, pay up, or escalate the dispute. And the latter two options are increasingly out of the reach of many news organizations, not to mention beyond the means of the overwhelming majority of private citizen inquiries.
Escalation often requires hiring your own lawyer (they don’t come cheap) and possibly suing the state. That certainly gets the government’s attention, primarily from the perspective of dicey political optics from having to state in an official record in open court why the public should not be allowed to know about public matters. Sometimes, that has a way of making the government a bit more circumspect. Rarely do such causes go to trial.
This isn’t to single out Governor Youngkin. He’s only continuing a sorry trend shamelessly advanced by his predecessors. As Kate’s story notes, Gov. Ralph Northam’s administration hid his daily calendar behind the working papers exemption in 2018 when questions arose about his meetings with top Dominion executives just ahead of a pivotal state Air Pollution Control Board permit vote on Dominion’s since-deceased Atlantic Coast Pipeline. And before that, former Gov. Terry McAuliffe used the exemption to conceal a list of felons whose rights he had restored, some of whom had not finished their sentences.
The point is: why have a FOIA law if you must lawyer up and threaten to sue just to get basic, truthful information from the government that draws its sustenance from our tax dollars?
We’re left to wonder what those records contain that is more damning to an officeholder or more corrosive to public trust than hiding the information altogether?
While stories based on FOIA requests rarely played on the front page above the fold in the heyday of fat newspapers, they rarely set off huge scandals or brought down governments.
It wasn’t a FOIA request that resulted in The New York Times and Washington Post publishing the Pentagon Papers, exposing lies the White House and the Pentagon had fed the public and Congress to hide how disastrously the Vietnam War was going. Nor did Watergate unravel because some federal bureaucrat, scrambling to make happy hour on a Friday, greenlighted a records request from Bob Woodward or Carl Bernstein.
No, FOIAs are a commonsense stopgap, an everyman’s tool deliberately put within the citizens’ grasp, to ensure that the little things are done right and that government, at all levels, understands that the public has a reasonable right of review.
Without a robust FOIA, small-scale wrongdoing gains the dark, airless recesses necessary to metastasize unchecked into criminal abuse.
That’s exactly where we’re headed when government chooses to peremptorily thwart legitimate, earnest requests made pursuant to our FOIA law.
Sadly, there’s little public awareness of, or interest in, protecting its right of free inquiry. So those in power think nothing of eroding those rights with new exemptions every year and turning back efforts to strengthen it. For instance, Del. Danica Roem’s bill this year to mitigate the extortionate fees governments can exact for FOIA requests died in a subcommittee for lack of a second.
Our open records and meetings laws were not created for journalists. It was created for the people, the governed. And it works. . . . As with so much in society today, for the average person it’s no longer a fair fight.
Our open records and meetings laws were not created for journalists. It was created for the people, the governed. And it works.
A private Montebello couple who began filing FOIA requests to learn why the Department of Game and Inland Fisheries shuttered a fish hatchery near their home uncovered a state-funded African safari and tens of thousands of dollars in lavish gift purchases that forced the agency’s director to resign in 2005.
There is, however, an inverse relationship to the faltering health of news organizations and the government’s ability to delay or deny accountability. As trusted, traditional institutions of journalism atrophy, the forces of deceit, disinformation and nondisclosure strengthen commensurately.
As with so much in society today, for the average person it’s no longer a fair fight.
Re Northam’s abuse of FOIA, thus is no surprise to me. During an election victory celebration, I mentioned to him the the attendees in the room were responsible for making his victory possible and that virtually all of them opposed his support of the pipeline, he responded by saying that “oh, I’m not the Decider, I will just be the Implementer.” How did that work out, Mr. Ex-Guv?