I got an inquiry last week from a police chief in a smallish town. He told me about a department employee who went through the grievance process after he was fired from his job. A grievance panel upheld the dismissal.
The employee got a copy of the panel’s report, and the chief was saying that he knew he’d get media requests for the report. He wanted to know what his obligations were under FOIA. He was worried about violating the employee’s privacy rights.
His question brought up two issues that come to me frequently, and I appreciated the chief’s willingness to discuss them. On is private, the other public. One is the notion of privacy under FOIA. The other is how FOIA can be the government’s best friend when it comes to public relations.
As for privacy, there is no general privacy exemption in Virginia’s FOIA. Some states do have such an exemption, and some states require weighing the public interest in disclosing records against someone’s privacy rights. And the federal FOIA has said that records that identify specific individuals are exempt.
But not Virginia.
There are places in the act that will exempt personally identifying information -- medical and scholastic records in general, and then as applied to specific government agencies, programs or activities.
There’s an exemption that’s often misused for “personal information” as defined in another statute (which would include names and addresses), but a close inspection of that exemption (as well as knowledge of the provision’s origin) reveals that it is only for the names and addresses of people signing up for a government’s email alerts.
Furthermore, under FOIA, there is no definition of what information is “private.” Names, addresses and phone numbers (unless unlisted) are published in every phone book. We freely give our names and addresses to commercial entities, we wear name tags at public events and we adorn our vanity license plates with the names of our spouses and children.
Of course, the chief may have been less concerned with names and addresses than he was with the details of the employee’s termination. And there is an exemption for personnel records, as well as one for personal information in an inactive file that’s gone through the Department of Employment Dispute Resolution.
Both of these exemptions, however, are discretionary. There may be other places in the Virginia Code that would prevent the release of some part of the report (and I advised him to find that out), but FOIA says only that the information may be withheld. It does not have to be, though.
And that’s where public relations comes into play. The chief and I both recognized that in this case, because there was a great deal of public interest, it would be in the department’s best interest to release the report. That may sound backwards, but in this case, the department’s best interest is also the public’s best interest. The public wants reassurance that the process was fairly and thoroughly administered. The department wantsd the public to know that, too. And so the chief was inclined to release the report (pending finding out about other code sections, of course).
Sometimes government representatives get so caught up in the trees of finding all the FOIA exemptions that could apply, that they lose sight of the forest that is their own best interest. And their own relationship to the public.
Releasing records is often the best way to dispel rumors and to assure the public that your walk matches your talk. The less time spent fighting disclosure, the less time the public has to concoct conspiracies about what is being hidden from them and why.
I don’t know anything about the circumstances of the employee’s firing. And nothing else may ever come of this situation. But it’s not hard to imagine other firing situations where sour grapes bloom and grow. It’s not hard to imagine something going wrong with a building project or a contract or development of some policy. And when the government can say, “Here are the records, judge for yourself,” they come away looking open and honest. There will still be those who disagree and who want to make hay, but at least the hay can be made about the issue itself instead of why records are being withheld.
The more open the FOIA process, the more opportunities for the public to trust that their interests are at the base of all government decisions.