Discussion during Wednesday’s meeting of the Virginia FOIA Council focused on the implications of a recent Virginia Supreme Court ruling that permitted public bodies to withhold entire documents simply because a portion of the document was exempt from the state’s Freedom Of Information Act. That runs sharply afoul of FOIA language that emphasizes only exempt information be redacted while the remainder is made public.
The ruling generated a wave of backlash from legislators and open government advocates. It will manifest itself in January when the General Assembly takes up three bills submitted by Del. Rick Morris (R-Isle of Wight).
The first of the three bills would make a violation of FOIA law a Class 1 misdemeanor. “It creates oversight and accountability,” Morris told the FOIA Council on Wednesday.
The second addresses email accounts and would require public officials to use government-provided email accounts when conducting public business. Morris said that provision would “ensure we’re not subverting FOIA.”
The third bill, meant to ensure only qualifying subjects be discussed in closed meetings, met with skepticism. Morris suggested a member of the press be allowed to attend closed meetings as a monitor to ensure the law is followed.
Roger Wiley, representing the Virginia Municipal League and the Virginia Association of Counties, poked a quick hole in the premise: “If you invite a reporter into a closed session, it’s not a closed session.”
Craig Merritt, an attorney speaking on behalf of the Virginia Press Association, said the idea of a monitor in closed meetings has “surface plausibility,” though he cautioned against institutionalizing the role of the press in a meeting. “There’s a need for an ombudsman in this situation. Making the press the cop is not an ideal way to address this.”
Delegate and now senator-elect Scott Surovell also spoke, recounting the steps that led to the Supreme Court’s evisceration of Virginia FOIA.
Surovell sought to access records regarding executions in Virginia, including manuals that contained detailed information on protocols, drugs used in executions and information on the electric chair. The Virginia Department of Corrections fought Surovell’s FOIA request, arguing that the documents contained proprietary information and gave details about floor plans and procedures, which it claimed posed a danger to public safety.
Surovell sued in Fairfax Circuit Court, where Judge Jane Roush ruled the Department of Corrections must release the documents. The DOC appealed to the Virginia Supreme Court and got the ruling reversed.