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FOIA Friday: What government bodies can charge for records, interim appointment disclosures [1]
['Staff Report', 'More From Author', '- February']
Date: 2024-02-02
One of the less noticed features of the Virginia Way is the long-running tendency of the commonwealth’s leaders to conduct their decision-making behind closed doors. While the Virginia Freedom of Information Act presumes all government business is by default public and requires officials to justify why exceptions should be made, too many Virginia leaders in practice take the opposite stance, acting as if records are by default private and the public must prove they should be handled otherwise.
In this feature, we aim to highlight the frequency with which officials around Virginia are resisting public access to records on issues large and small — and note instances when the release of information under FOIA gave the public insight into how government bodies are operating.
General Assembly FOIA update: Studying fees
With no discussion, a House Rules subcommittee on Monday unanimously tabled a proposal to have the FOIA Advisory Council study whether Virginia FOIA “should be amended to make access to public records easier for requesters.”
Del. Amanda Batten, R-James City, told the panel House Joint Resolution 54 aims to address “a perennial issue.”
“State and local agencies are charging fees that often appear either exorbitant or irrational, and sometimes requesters make substantial requests that do in fact generate hundreds of hours of work and necessitate higher fees,” she said Monday. “This study will help balance these challenges and ensure practical and affordable access to public records while allowing agencies to recoup the actual costs of providing such access.”
Despite the resolution’s failure, the study proposal remains alive in a different bill from Sen. Danica Roem, D-Manassas. Roem’s legislation has also sought to put caps on FOIA fees charged to members of the public; however, the Senate Finance Committee on Wednesday added language to the bill requiring the General Assembly to pass the fee provisions again in 2025 before they can take effect.
“We get the study and we have a framework from which the FOIA Advisory Council can operate,” said Roem, who added that she has proposed versions of her legislation in three prior years with no success.
“Some things around here take a long time,” she said. “It is at least moving in a direction it has not previously.”
General Assembly FOIA update: Notifying the public of interim appointments
When seats on local governing bodies like city councils, school boards and boards of supervisors become vacant between elections, Virginia law lets members make interim appointments.
“That’s certainly necessary, right, in order to keep the operations of governing going,” said Del. David Bulova, D-Fairfax, during a House Privileges and Elections subcommittee meeting Monday. “But when you think about it, it’s probably one of the most undemocratic things. … And those things can actually change the outcome of votes depending on who they go ahead and pick.”
Bulova’s House Bill 69 would continue to allow interim appointments but would require the public body to hold a public meeting seven days before making an appointment to announce the names of anyone they are considering.
“At election time when citizens vote for their candidates, they usually know who they are and they know what their qualifications are,” said Megan Rhyne, executive director of the Virginia Coalition for Open Government, which asked Bulova to carry the bill. “That should be the same for when an appointee gets made, because that appointee will have the exact voting power as the person that they elected.”
While most interim appointments go smoothly, Bulova noted “some pretty simple Google searches” would show that isn’t always the case.
“I’ve seen many local government bodies go behind closed doors to select a replacement for an open seat citing the personnel exemption of FOIA,” said InsideNoVa Publisher Bruce Potter, a member of the FOIA Advisory Council. “This should not happen when the position otherwise would be elected. These decisions need to be made in public.”
However, Del. Chad Green, R-York, worried the requirement could make it difficult for public bodies to make appointments given the 45-day window state code gives them before a local circuit court judge can step in to fill the vacancy.
“We could be setting up a potential rub between the circuit court judge and the city council or the board of supervisors,” he said.
The bill cleared a House subcommittee on a 6-1 vote and is scheduled to be considered by the House Privileges and Elections Committee Friday morning.
The Mercury’s efforts to track FOIA and other transparency cases in Virginia are indebted to the work of the Virginia Coalition for Open Government , a nonprofit alliance dedicated to expanding access to government records, meetings and other state and local proceedings.
FOIA shows HOA strategy to delay interchange plans
Emails obtained through a Freedom of Information Act request by the Loudoun Times-Mirror show a homeowners association in Purcellville laid out a deliberate strategy to delay a road interchange Loudoun County is planning at routes 7 and 690 in hopes of halting work.
The construction of one of the ramps will require the Virginia Department of Transportation to obtain a right of way on a half-acre of land owned by the Catoctin Meadows Homeowners Association, the Times-Mirror reported. Loudoun County’s administrator said last year that “indefinite delays” to the project could cause it to be scrapped altogether.
“Delays put the County’s pursuit of State and Federal project funding at risk,” wrote HOA President Tip Stinnette in an email to another association member that appears to have accidentally been sent to the town council and was obtained through the FOIA request.
“It is your Board’s strategy to delay the interchange approval process at every turn and ultimately ensure no interchange encroachment on our common property,” he continued.
Tracking state permits
As the Mercury reported this week, Gov. Glenn Youngkin’s administration has launched a new website that will allow Virginians to track the status of government permits. While the Virginia Permit Transparency platform doesn’t currently include the actual documents involved in permitting, it lets the public more easily identify where permits stand in the review process and which documents might be available for request from a state agency.
Have you experienced local or state officials denying or delaying your FOIA request? Tell us about it: [email protected]
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