Commentary: A litany of failure

Officials' attitudes about FOIA must change for transparent government to thrive in the commonwealth

It seems as though no amount of encouragement or ridicule will motivate government officials across the commonwealth to improve their dismal record of compliance with Virginia’s Freedom of Information Act.

For years, the Associated Press organized routine tests as a sort-of FOIA audit. It encouraged reporters from AP newspapers to go to sheriffs’ departments and school board offices to ask for information that should be readily available to the public — just to determine the response.

As you might expect, the results were a litany of failure. Our recent exercise produced similar results.

This year, the Daily Press led the charge, organizing 12 other newspapers across the state to ask for a handful of records on Nov. 5. The items requested were all public according to state law, as officials should know.

But when faced with those inquiries:

• More than half of the law enforcement agencies refused to comply while others pushed back by asking the reporters for information that is not required to obtain public records.

• About one-quarter of government agencies and school boards would not provide information about public salaries. At least one, in Radford, attempted to charge a $12 fee for one principal’s salary figure.

• In other instances, the agencies claimed not to have records they are required by law to keep.

What’s amazing to us is that this happens year after year. One might think that notoriety or embarrassment might serve to motivate officials, but that doesn’t seem to be the case.

That tells us that the problem is two-fold.

There are more than 170 exemptions in the Virginia FOIA which undermine its straightforward attempt to make records public and to make meetings open. These need to be reduced and the law streamlined in order to improve understanding and, with any hope, compliance.

But the commonwealth must also reverse an attitude of hostility amongst government officials when it comes to releasing public records or holding open meetings. Those asking for documents shouldn’t face undue inquiries or unnecessary obstacles to items that, according to law, are rightfully theirs.

“The biggest hurdle to overcome is the resistance to FOIA in general,” said Megan Rhyne, executive director of the Virginia Coalition for Open Government. She was speaking about a battle the Daily Press in Newport News is fighting with the Virginia Supreme Court’s Office of the Executive Secretary, but the sentiment holds across the board.

Reversing attitudes about FOIA may be a more daunting task that closing its many loopholes, but there are things Virginians can do to improve conditions and bolster transparency in government.

First, the Freedom of Information Advisory Council, which is now conducting a three-year review of the law, was created in part to educate the public about the law. It conducts education programs and public bodies and citizen groups can request training seminars. Do so.

(Disclosure: Marisa Porto, the vice president of content for the Daily Press and a member of the editorial board, sits on the FOIA Council.)

Second, we would urge lawmakers to consider some type of compliance requirement for the gatekeepers to public documents. Ideally, we’d like them to receive formal training. But that seems unlikely to win legislative approval, and might be cost prohibitive for our poorest Virginia communities.

At the very least, the folks who staff the front desks and who field citizen requests should familiarize themselves with the law. Accountability comes from the top, so those who lead or manage public agencies should emphasize knowledge of and compliance with FOIA.

Finally, while we can accept that many of these missteps result from ignorance of the law, we also know that some officials do not feel it is their duty to honor the public’s request. They need the stick instead of the carrot.

That’s why we believe Virginia should join 24 other states by making purposeful violations of FOIA a class 1 misdemeanor, punishable with a fine and/or jail time.

Virginia’s open government law is deeply flawed, but that does not excuse the behavior of those obligated to provide records to the public. Citizens have a right to expect better and they can see improvements should these changes be implemented.

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