VA lawmaker says it’s time to scrutinize state’s 100-plus FOIA exemptions

By Kathryn Watson | Watchdog.org, Virginia Bureau

ALEXANDRIA — The Virginia Freedom of Information Act has more than 100 exemptions, with more piling up each legislative session.

It’s time to scrutinize them all, one lawmaker says, and he’s filed three piece of legislation to work on changes.

Delegate Jim LeMunyon has filed a resolution that would charge Virginia’s Freedom of Information Advisory Council, which advises state officials and the public on FOIA-related bills and issues, with reviewing each exemption and deciding which exemptions should be eliminated. Speaker of the House Bill Howell placed LeMunyon on the subcommittee that considers FOIA bills last year.

“Bills are passed, and usually, they’re very specific in terms of making a change to an exemption or adding an exemption,” LeMunyon told Watchdog.org. “And what this does is it gives the FOIA council a chance to step back and say, ‘well, do all of these exemptions in their entirety really make sense? Or has government become too closed?’”

It’s something the council, made up of state employees and citizens, has done before — but not since 1999. The world has changed a lot since then, particularly technologically.

“And some of these exemptions for whatever reason might become out of date or obsolete, so it gives us a chance to look at that,” LeMunyon said. “Because the way government operates changes over time like everything else.”

It’s really a “checkup” to keep FOIA laws “nice and healthy,” he added.

That isn’t the only bill LeMunyon has filed to open up more records to the public.

He’s also filed legislation that would subject the State Corporation Commission, which oversees business activity in Virginia, to FOIA for administrative records. As an independent state agency, the SCC hasn’t been required to release much information to the public.

While proprietary business information would still be off limits, SCC office furniture expenses for 2013 would be fair game under LeMunyon’s bill.

“It’s basically saying, from the standpoint of their administrative operations, they need to be subject to FOIA just like the administrative operations of any other state agency. That’s really the point of the bill,” LeMunyon said.

LeMunyon isn’t the only one to file a bill to open up the SCC, so it looks like the issue is bound to gain traction in the Legislature in 2014.

“Could it be more expansive? Maybe it could be so there would be access to more records,” LeMunyon said. “But I think the business community makes a good point that you don’t want something going out the door, and then finding out later that was really sensitive and messed up somebody’s company in a way that’s totally unintended. So we’re kind of starting small.”

There’s one more FOIA bill LeMunyon has filed that’s worth noting.

LeMunyon’s HB 788 requires state agencies to respond to out-of-state record requests. As the law stands, state agencies aren’t required to respond to those, making the Old Dominion one of only a few states in the nation to restrict records like that.

With LeMunyon’s bill, local and state government agencies would have more time to respond to out-of-state requests, and agencies could request advance payment for charges likely to exceed $100.

But it would require state agencies to be just as transparent with out-of-state requests as those in-state.

In 2013, the U.S. Supreme Court ruled Virginia’s in-state provision is constitutional. Advocates of changing the law, like Democratic Delegate Mark Keam of Vienna, have argued that, in today’s world where technology breaks borders, Virginia’s law doesn’t make sense.

Keam filed a similar bill last year.

“I think Virginia is a conservative state where we just don’t like change,” Keam told Watchdog.org at the time. “We’ve done things a certain way for so long, why rock the boat and change things?”

Individuals and companies out of state can always ask someone in Virginia to make the request for them, LeMunyon said. And he realizes expanding the law could add more work for state agencies in the near term. But, if requesters place more records online, even Virginians would have more access to more documents, he said.

“The more state records go online, it might lead to fewer FOIA requests in the first place,” LeMunyon said. “So in the long term, it’s a reduced workload for state agencies having to respond to a FOIA request.”

— Kathryn Watson is a reporter for Watchdog.org’s Virginia Bureau, and can be reached at kwatson@watchdog.org.

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