An article published over the weekend in Virginia Statehouse News and reprinted by the Daily Press, breathlessly warns us that under a bill awaiting the governor’s signature, “Email records obtained under FOIA will no longer feature information identifying people who talk with local lawmakers.”
A public records access expert . . . IN NORTH CAROLINA . . . lamented that the bill was “a smokescreen to take out just about everything they can” and that they were “whacking names.”
Another expert . . . IN CHICAGO . . . said the proposal’s narrow scope of “public business” is ripe for abuse.
The article quotes a couple of Virginia legislators, too, but nowhere is there a quote from anyone who works with FOIA on a daily basis in Virginia. Not me, not anyone from the FOIA Council, no one from the Virginia Press Association or Society of Professional Journalists, no one who advises local governments, like the Virginia Association of Counties or the Local Government Attorneys.
It’s too bad, because if they had talked to any of us, they would have understood that this bill is not the piece of sky falling on Chicken Little.
Let’s start with what the law already says and does. The article says that the names of people contacting lawmakers would be shielded unless they contain “a mention of a public business transaction.”
But, no, that’s not what the bill says. The bill actually says that the exemption would not apply if the correspondence “relates to the transaction of public business.” That’s important because that is the exact same phrase used in the definition of “public records” in 2.2-3701: "records...prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. Records that are not prepared for or used in the transaction of public business are not public records."
This definition has long been in place, and has long been interpreted as meaning, basically, anything the government does.
Its opposite is a record NOT in the transaction of business, i.e., purely personal records like, "Honey, pick the kids up at 4:00," or “Nice to see you at the party last night,” or "There's cake in the break room."
The upside of the Virginia definition is that the focus is on the CONTENT of the record, not on the way it is sent or received. Therefore, "public records" include those records sent or received on personal computers or email accounts if they relate to the transaction of public business.
Many states are currently struggling with government personnel taking their communications offline to private cell phones or personal email accounts where they are beyond the reach of the public records law. In contrast, Virginia government attorneys and records managers across the state have been receiving training reminding them to include personal devices and accounts when searching for records responsive to a FOIA request.
The downside of the Virginia definition, and the very important point the experts from North Carolina and Chicago were getting at, is that it doesn't get at people who are using government equipment to conduct private side businesses (or, perhaps, a secret affair, á la former Detroit Mayor Kwame Kilpatrick) or to get at people who are contacting an official to ask if he/she will use his influence to help with a private matter.
That is a point we raised in our testimony on the bill. But in making the point, we had to acknowledge that current law does not allow the release of names or personal information on personal communications as is. We may wish current law covered more, but it does not, and this bill will not change that.
The article also went astray on another aspect of the bill. Though the article said the bill would shield information “about anyone who contacts a public official,” it actually applies only to people contacting their local governing board. And again, it would only apply to personal communications, which are already outside the scope of FOIA, not to communications about "the transaction of public business," which are public records subject to release, names and all, just like any other public record.
Despite my frustrations with the misconceptions about what this bill will do, or perhaps because of it, I hope the governor will veto it. Because it basically restates existing law, it can be confusing. It’s quite possible that a well-meaning government clerk could interpret this new provision incorrectly. But, it’s also not quite the dire situation depicted in the article.
If I still haven’t explained it well, or if you just want to weigh in, please post your comments and questions below.