Virginia law (pdf) — Chapter 37 of Title 2.2 — “The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government… The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed…”
Virginia Freedom of Information Advisory Committee is a semi-official group that gives advisory opinions about compliance with the FOIA laws. Strong advocates for freedom of information are in the minority. Eight of the 12 council members are judges or attorneys; three are reporters or former editors, and one is a librarian.
2021 revision to Virginia FOIA law — HR 2004, the Virginia Freedom of Information Act; law-enforcement criminal incident information; criminal investigative files, introduced by Chris Hurst, adds criminal investigative files, defined in the bill, relating to a criminal investigation or proceeding that is not ongoing, also defined in the bill, to the types of law-enforcement and criminal records required to be released in accordance with the provisions of the Virginia Freedom of Information Act. Under (previous) current law, the release of criminal investigative files (was) is discretionary. (There are certain exceptions). As introduced, this bill was a recommendation of the Virginia Freedom of Information Advisory Council.
2022 reversion of the revision – According to the Roanoke Times: “The original law in question, which has only been in effect since July, was … a way to guarantee family members could get access to these files in cases where their loved ones were victims of crimes. The impetus for that legislation came from the spouse of a woman killed in the 2019 mass shooting inside a Virginia Beach municipal building, who wanted more leverage for holding police accountable in an investigation he found unsatisfactory.” But that access was closed off in 2022. Indeed, many of the FOIA reforms of recent years are being reversed, according to an op-ed in the Virginia Mercury. And Gov. Youngkin is opposed to citizen access to government documents.
Proposed improvements: One proposal to make FOIA access easier and cheaper did not pass. “To reduce… prohibitively expensive FOIA fees while seeking access to government records, Del. Danica Roem has introduced legislation requiring public bodies in Virginia to fulfill records requests for free as long as they take no more than two hours of staff time. For more complex requests that take longer, public bodies could only charge the hourly rate of the lowest-paid employee working on the request or $33 an hour, whichever is lower. “There’s a consensus that the current FOIA fee structure is not working,” Roem said.
Recent articles about the Virginia FOIA laws:
- A Culture of Contempt — Virginia’s open records law doesn’t just suffer from problems with its text — in the form of loopholes, exemptions and provisions allowing exorbitant charges for records that belong to the taxpayers — but also from a general culture of contempt for the concept on the part of some government officials. — Robert Zulio, May 20, 2021, Virginia Mercury.
- FOIA does not allow student media access to localized dorm-by-dorm records about coronavirus at James Madison University, following a Sept. 2021 court decision.
- FOIA is not working for nursing home inspections, according to a March, 2021 article by blogger James C. Sherlock. And the inspection system itself is deeply flawed.
- FOIA – A shield or a cloak? Richmond Times Dispatch, Aug. 2, 2015. If a member of your family is killed, do you have a right to the police report? Most Virginians probably think the answer is obviously yes. In fact, it’s no.
- FOIA Review answers call for change with two maybes and a no. Newport News Daily Press, July 22, 2015. The committee turned down a request to take the law’s “working papers” exemption away from university presidents. A number of state legislators had sought to cut back the provision, which allows college presidents to shield a broad swath of documents and correspondence from FOIA requests.
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Climate scientist Michael Mann fought FOIA requests for his research notes from climate deniers intent on proving fraud.
Virginia Supreme Court rules for UVa in FOIA lawsuit — Unpublished research by university scientists is exempt from the Virginia Freedom of Information Act, the Virginia Supreme Court ruled , rejecting an attempt by climate change deniers to view the research notes and work of prominent climate Scientist Michael Mann during his years at the University of Virginia.
Examples of an email exchange between a news organization and a state agency are available here, in a story about WAVY’s exploration of proposed changes to the public education system in Virginia.
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Close the loopholes in the FOIA
“That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants and at all times amenable to them.”
It has been Virginia’s long-standing disgrace that secret government and a brazenly public-be-damned attitude has festered in the shadow of our rich legacy of freedom. Creating a “sunshine office” is a good start, but there are still enormous loopholes built into existing state law. One loophole involves access to law-enforcement records.
Here’s a good example of how things go wrong. Last fall, an on-duty Radford city police officer ran over and severely injured a Radford University student. I wrote the state police asking for a copy of their report on this incident under the FOIA. I was hoping to help student journalists clear up an apparent conflict between the officer’s story and the state police report.
But the request was denied since the law (Section 46.2-380) says that anyone involved in an accident, and his or her attorney or insurance company is allowed a copy of the accident report.
That’s right. The law says if you’re involved, you are entitled to a copy of the report. It actually doesn’t say that if you’re not involved, you aren’t entitled. And it certainly doesn’t say that what the police do is none of the public’s business.
It’s worth noting that another part of the state code, the FOIA itself (especially Section 2.1-341) says: “The affairs of government are not intended to be conducted in an atmosphere of secrecy …” and that the FOIA “shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government.”
These noble sentiments have been deeply undermined by contradictions in the law, which need to be corrected. Last year, a state survey found that requests for information about incidents involving police were appropriately answered by only 14 percent of the state’s police jurisdictions.
Clearly, a “sunshine office” is only the first step in making our “trustees and servants” amenable in the sense originally envisioned in 1776.