Competing interests bound to clash as state reviews FOIA exemptions

By Kathryn Watson | Watchdog.org, Virginia Bureau

ALEXANDRIA, Va. — The Virginia Freedom of Information Act lists more than 100 exemptions, some from the time the law was enacted in 1968 but most coming in recent years.

The Virginia Freedom of Information Advisory Council, a result of a bill by Delegate James LeMunyon, R-Chantilly, is reviewing each one. As council members scrutinized exemptions one by one Tuesday, Robert Tavenner, director of the Virginia Division of Legislative Services, urged members to ask themselves whether the exemption is needed.

The goal?

“To ensure transparency in government,” said George Whitehurst, leader of one of the two FOIA subcommittees and communications and public relations manager for the Fredericksburg Regional Chamber of Commerce. “… I hope we can simplify and modify it for the 21^st century.”

Still, while everyone on the FOIA council — members of the media, business and government communities — professes the same goal of transparency, competing interests between government representatives who keep those records, and those in the open government community who want those records, are bound to clash.

In this week’s first FOIA meeting to review exemptions, representation for the Virginia Association of Broadcasters and the Virginia Press Association emphasized that government agencies claim exemptions based on advice of legal counsel to public bodies much too broadly and too often. Government representatives, while agreeing transparency is needed, emphasized the flip side of that coin — that government employees must be able to speak freely with lawyers.

It’s the “natural tension,” between government and open government advocates, as OpenTheGovernment.org Assistant Director Amy Bennett said.

In the past, government representation on FOIA subcommittees has swayed decisions in ways that don’t sit well with advocates of open government.

Last year, one of the Virginia FOIA council subcommittees dominated by state employees dropped a bill that would have expanded access to public records to non-Virginians. Virginia law now says only Virginia citizens have a right to public records, making it one of only a handful of states with such a citizens-only provision.

Still, government-employed members of the FOIA committee aren’t the only ones with skin in the game.

The buck stops with the General Assembly.

Even if the council comes up with a bill limiting the extent that public officials can exempt working papers — a broadly used exemption that covers decision-making documents of some officials even after a decision has been made — state lawmakers have to pass that change legislatively. And it isn’t necessarily in their interest for the inner workings of their offices to become public.

“I’m not so sure we could get anything through the General Assembly,” Megan Rhyne, executive director of the Virginia Coalition for Open Government, said about the working papers exemption.

Kathryn Watson is an investigative reporter for Watchdog.org.