The first paragraph of the Virginia Freedom of Information Act, passed by the General Assembly in 1968, states that all public records "shall be presumed open."
It doesn’t add, “except when we don’t want to,” although that provision does seem to be available in many cases. Individual government entities have a variety of ways of making it hard for the public to access public information.
One such way is simply to require that the information seeker file a “FOIA request,” a written request for information under the Freedom of Information Act. Most public information should be readily available, handed over on request. The written query allows the entity, a school system for example, to parse the request to provide as little information as possible. It is a method of foot-dragging, of just hoping that the requestor will give up.
A growing obstacle involves fees. Many government agencies respond to any request for public information with a bill, sometimes for thousands of dollars. The bills can cover staff time to calculate the answers, to locate the data. The staff time involved is already on the public payroll, and charging fees to provide public information to the public when the public is already paying for the existence of the information is double dipping. Again, it’s a method designed to discourage access. And it is often effective. And while many citizen groups in our area can cough up $3,000 or $6,000 or more for access to the email correspondence of public officials on a decision that affects the public, for example, many cannot. It is inequitable to charge this sort of fee.
The existence of email correspondence between public officials is another concern, allowing for discussion that, while usually FOIA-able, takes place outside the public eye. Local governments could develop a public archive for email correspondence that would do much to enhance transparency and sunshine in the commonwealth, and reduce embarrassment on the part of emailing officials because they would recognize in advance that their email is public.
The Virginia Freedom of Information Act includes an exception that allows police to withhold, without justification, "complaints, memoranda, correspondence, case files or reports, witness statements and evidence." Police officials in Fairfax, Arlington and Alexandria have adopted what they call a "blanket" approach to using their exemption. That means they have decided to withhold any document they can without any analysis of whether they should. But no public entity should be allowed blanket exemptions. Withholding public information, if it is allowed, should be on a case-by-case basis. Police departments all over the country routinely allow access to police reports, incident reports and many other source documents without harm, documents that police here refuse to allow the public to see.
So with many systemic roadblocks to public access to public information, it is discouraging to say the least to see the General Assembly add significant new obstacles.
The Virginia Coalitions for Open Government reports that the General Assembly passed exemptions that “will limit access to some correspondence of legislative aides, to evacuation plans for hospitals operating under certificates of public need, to certain flight plans filed at regional government airports, to records and meetings of the Jamestown-Yorktown Foundation and to bank self-assessments. All concealed handgun permit applications will now be off-limits, too, thanks to a bill that was radically amended from its original purpose and reported from committee to House floor in less than 24 hours,” limiting public comment.