When a local government is faced with an issue -- how to repurpose an old building, whether to implement block scheduling in the high schools, how satisfied the workforce is, where to locate a new government building -- they often hire an outside consultant. The consultant comes in, asks a lot of questions, observes what is and isn’t going on, and prepares a report.
What happens next isn’t always so cut and dried.
Recently, in Halifax County, a school board said it would not release an efficiency report until after each board member had a chance not only to read the report, but to understand it and review the report’s recommendations with fellow board members. The county did not cite an exemption under the Freedom of Information Act for why they could withhold it.
James Madison University refused to release an salary inversion report, citing the exemption for personnel records.
In Fredericksburg, a report prepared by consultants hired to evaluate proposals for a new courthouse was kept confidential under an exemption for papers prepared in a deal under the Public-Private Education Facilities Infrastructure Act.
Chesterfield once delayed making public a study on police officer pay. Requesters asking for the report were told that it could not be released until it after it was distributed to a leadership team and members of the Board of Supervisors. One month later, the requester was told the same thing: it was still being distributed.
With the exception of consultant’s reports in public-private partnership deals, there is no blanket exemption for such reports.When former Delegate Tom Gear was still a city councilman, he had difficulty getting a consultant’s report. Once elected, he pushed legislation to clarify that for the most part, consultant reports are subject to disclosure.
Here’s what that section of FOIA (2.2-3705.8(B)) says:
B. Nothing in this chapter shall be construed as denying public access to the nonexempt portions of a report of a consultant hired by or at the request of a local public body or the mayor or chief executive or administrative officer of such public body if (i) the contents of such report have been distributed or disclosed to members of the local public body or (ii) the local public body has scheduled any action on a matter that is the subject of the consultant's report.
One of the biggest take-aways from this section is that it specfically refers to “nonexempt portions” of a report. That necessarily implies that a report is segregable: that there may be exempt portions that could be withheld, and nonexempt portions that should be released. In other words, a report cannot be withheld in its entirety. At least not when it’s been distributed to others or when action’s been scheduled on it.
So yes, a salary study may include some exempt material related to personnel -- identifiable individuals -- but there will be a lot of general information that is not employee-specific that should be released.
The FOIA Council came to this conclusion when it ruled the non-exempt portions of an employee satisfaction survey in Virginia Beach had to be released, though the parts that identified individual employees could be redacted.
But it all leaves me wondering why all the reluctance. Taxpayers have often shelled out tens of thousands of dollars for these reports. They are usually prepared on matters that have impact on a large segment of the community.
The public wants to know what proposals or recommendations have been made so they can begin weighing the options on their own. They may see new options they hadn’t thought of. They may see convincing arguments for an option they previously disagreed with, or vice versa.
Consultant’s reports should not be treated like state secrets. If the issue is big enough to need input from consultants, it’s big enough to need input from the public.