The Power To Investigate FOIA Complaints

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?