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The Power To Investigate FOIA Complaints

Shouldn't there be a body in Virginia that can investigate and enforce FOIA violations, and resolve disputes, too?

Much attention was recently directed at the governor's Government Reform Commission's revelation that it held a series of closed-door workgroups to discuss possible recommendations. Last year the commission used public committees to do the consider recommendations, so when the commission's staff announced in April that it would use the workgroup format, I don’t think anyone thought they would be anything other than open to the public also.

Just a few days after it became clear they were anything but open (and only after some agonizingly bad explanations of how this was some new concept of transparency that many many not be able to understand), the governor wisely agreed to require future workgroups to meet in public…but only if three or more commission members are present.

That, of course, raises the question of what happens when just two members, or even one or even none, are present. In my opinion, if the workgroups can be characterized as entities set up to advise the commission, the workgroups are open, regardless of how many commission members are present.

It is not surprising that the political long knives came out very quickly. The governor’s office sniped that his predecessor would not have opened up any of his meetings. The Democrats retorted that they were intentionally excluded.
Then, Alexandria’s Del. David Englin, a Democrat, demanded that Attorney General Ken Cuccinelli, a Republican, investigate whether the workgroups had violated FOIA. The AG declined, saying his office didn’t have investigatory authority under FOIA.

Perhaps sensing that this part of the drama was getting lost in the partisan weeds, the Roanoke Times penned an editorial on Sept. 15 that raised the question: if they Attorney General is correct (the editorial thinks he's not, but regardless), SHOULD the AG have the power to investigate FOIA violations?

It's an excellent question.

The FOIA Council, set up in 2000, has handled thousands of FOIA inquiries over the years. It issues formal and informal opinions, it sets up workgroups (open to the public, of course) to study changes to FOIA, and it is currently conducting statewide "FOIA roadshows" to train government employees on the ins and outs of Virginia's FOIA.

But, it doesn't have enforcement authority. It doesn't even have the authority to informally mediate a FOIA dispute.

Connecticut has that. Their FOIA Commission issues binding opinions. The New York FOIA office's have de facto binding authority.

Even though they're giving out great advice, the Virginia council just can't get involved in the nitty gritty of investigating and/or resolving a FOIA dispute.

The Attorneys General in Texas, Kentucky and Hawaii (and others) all have some sort of authority to investigate and resolve FOIA disputes, as well as the special FOIA divisions to do it.

Given that the FOIA Council has been devoted to studying and interpreting FOIA -- and FOIA only -- for the past 10 years, I'd prefer that it get enforcement authority over the AG's office. But one of them should get it, and it should include the power to investigate, to enforce and/or to resolve disputes.

As it now stands, the only option citizens have is to go to court to resolve problems. This is costly, time-consuming and pretty intimidating to a lot of litigants. And, unfortunately, we've heard of too many judges who have admitted to not knowing much about FOIA. District and circuit court opinions also apply only to that locality, setting the stage for different interpretations of the same law in different parts of the state.

So, what do you think? Should someone -- the Council, the AG or ??? -- be able to investigate and enforce FOIA violations?

This post is contributed by a community member. The views expressed in this blog are those of the author and do not necessarily reflect those of Patch Media Corporation. Everyone is welcome to submit a post to Patch. If you'd like to post a blog, go here to get started.

Stevens Miller September 20, 2011 at 11:03 PM
From The Code of Virginia: § 2.2-3713. Proceedings for enforcement of chapter. A. Any person, including the attorney for the Commonwealth acting in his official or individual capacity, denied the rights and privileges conferred by this chapter may proceed to enforce such rights and privileges by filing a petition for mandamus or injunction, supported by an affidavit showing good cause. Such petition may be brought in the name of the person notwithstanding that a request for public records was made by the person's attorney in his representative capacity.
State Corruption Investigation September 21, 2011 at 09:43 PM
This is a great example that raises questions regarding FOIA laws on the books in VA vs. what is in practice, and the level of transparency. PRI, The Center for Public Integrity and Global Integrity are working with investigative journalists in each state to examine the risk for corruption in each state. Visit www.statecorruption.org. to learn more and to become part of the solution.
m.tracy September 22, 2011 at 05:02 AM
this is not just a state issue. the lack of transparency at the county level is equally disturbing. the Viriginia Citizens Coalition for Police Accountability has been repeatedly dissed by the County in its efforts to address concerns stemming from numerous incidents involving county police officers. Citizens shouldn't have to go to court to get transparency,, and taxpayers shouldn't have to pay when the county quietly settles the lawsuits. . more than $3 million has been paid to families of victims of shootings by police in some recent cases. . . .
Jason Spencer (Editor) September 22, 2011 at 06:26 AM
This entry was cross published to a few different Patches... So, which county are you referring to?
m.tracy September 22, 2011 at 07:40 PM
re jason's question: Fairfax.-- a department of which recently was "honored " with runnerup status for the "Black Hole " award by the international society of professional journalists. Since the mt vernon patch piece by ms rhyne was issued as "local opinion" , i assumed she was from the mt. vernon area of fairfax county. further search of the internet shows she is not. ( it would be helpful if local patches would identify pieces that aren't really local. that is not to say that thought-provoking pieces like hers shouldn't be published, just that readers need to know from whence they come..) My point was that our county govt (dominated by democrats) does not have clean hands on the transparency issue either, despite all the highflown rhetoric.. The transparency issue should be an election issue for all candidates . statewide and locally, because without some ability to enforce FOIA short of spending thousands of dollars on a court case, citizens are deprived of a fundamental right of democracy. . . .
Megan Rhyne September 23, 2011 at 01:29 AM
Hi folks -- I am based in Williamsburg, but I was aware of the VCCPA and the problems with getting information from Fairfax, thanks to citizen activists, local reporters & the VCCPA's founder, who reached out to a lot of groups around the state. Thanks for commenting, and I hope you'll read other posts in the future. -- Megan Rhyne
Kelli Grim1 September 24, 2011 at 08:18 PM
Come to Purcellville if you really want to see how to get everything done behind closed doors. We even have closed sessions and allow the Developers to go in... Now committee and council applicants are interviewed in closed meetings. check it out on www.BRLeader.com and these are suppose to be a bunch of Republicans on the Council. Disgraceful.
Jason Spencer (Editor) September 25, 2011 at 08:24 PM
Hello Megan: Thanks for responding! As a (fairly) recent transplant to Northern Virginia, I know I'd be interested to read your thoughts on Virginia's FOIA and local law enforcement. As a journalist, I've found it extremely difficult to get basic questions answered about criminal incidents -- which has been frustrating, to say the least. To my understanding, law enforcement leaders rallied in Richmond in recent years to kill a bill that would've brought some sunshine to their records -- which is bizarre, because incident reports and, in general, more detailed information about criminal activity is available in so many other states!
Megan Rhyne September 25, 2011 at 11:46 PM
Jason - There have been two bills that would have opened up closed investigative records in Virginia. Both died, but both led to study committees of the FOIA Council. The next one meets on Oct. 12 and will be discussing a draft rewrite of the criminal records section proposed by the Virginia Press Association. Go to the Council website for links to the draft, as well as to VCOG's 50-state round-up of access to police records. (scroll to the bottom) http://foiacouncil.dls.virginia.gov/subcom_mtgs/2011/subcom11.htm
m.tracy September 26, 2011 at 12:03 AM
with respect to jason's last comment, you are on to something that concerns a great many people. there is a local group that has been trying to get the Board of Supervisors to set up a citizens oversight group of the police.--tThe vast majority of cities and counties with similar populations already have such groups, but the Fairfax Board has made clear that they don't want to deal with facts-- and have done their best to bury this issue.. if you are interested, you should contact nick beltrante, the organizer of that group , and attend their next meeting. ( virginia citizens coalition for police accountability.) (don't know which district you live in, but the meeting will be in the mt. vernon district). The ccpa website is less than perfect, but i if you contact them they can give you info and directions, and i'm sure they will welcome you interest. (and it's nice to see that newcomers are concerned about this issue-- it's simply incomprehensible that our liberal-leaning elected officials are so adamantly opposed to transparency, and sad that more local residents don't realize what's going on. .
Megan Rhyne September 26, 2011 at 12:20 AM
I've been in contact with Mr. Beltrante and know about the work of the CCPA. Good stuff that citizen involvement! As mentioned, though, I'm in Williamsburg so I won't be at the meetings.
Kevin G. September 26, 2011 at 12:25 AM
Some of the suggested revisions were ridiculous. Glad they got axed. We don't "need" to know everything about everyone.
L Renee Walker February 12, 2012 at 11:22 PM
I would love to see a Citizens Review Board for the 15th District, it is well over due. The amount of backdoor corruption that is going on in this area is mind-boggling at best. What really baffles me is that the FEDS have not stepped in and cleaned these people out. From Stafford, Fredericksburg, Spotsylvania, King George, Orange, Culpepper and surrounding areas. The Law Enforcement, Judges, Commonwealth Attorney's and Court Systems are out of control. When the Citizens have proof of the injustice and corruption and no one is doing anything to stop it there is a major problem.

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