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EDITORIAL: Secrecy threatens freedom in Virginia

In Virginia, if you want to know what the State Police found investigating the worst mass murder in U.S. history, or what the consultants Hampton taxpayers hired to look into a proposed aquatics center found, or what Newport News council members had to say about the city manager's performance last year, you're out of luck.

If you were a parent in Staunton wondering about the financial management that allowed a school bookkeeper to embezzle thousands from an account holding student-raised funds for extracurricular activities, too bad.

Wondering what happened when that Winchester council member was charged with illegally shooting a gun, or the costs Richmond thinks it needs to cover with higher water and sewer bills?

If you don’t get the picture, let us bring it home for you. The Loudoun County Sheriff’s Office routinely withholds reports of criminal activity throughout the county and within the department itself. Loudoun’s Board of Supervisors routinely retreats to executive session to decide who’s building what on the land near your house or your children’s school.

Public officials in Loudoun and throughout the state justify decisions to hide their actions, or reveal discussions that lead to their decisions, by invoking exemptions to Virginia’s Freedom of Information Act. The state’s FOIA starts from the presumption that all government records and meetings are open and available to the public. A record cannot be withheld and a meeting cannot be closed unless a specific exemption applies, or unless some other statute in Virginia law applies.

Just because an exemption could apply, however, doesn’t mean it must. Exemptions are discretionary. They are intended to be interpreted narrowly to increase awareness of all citizens of government activities. But it doesn’t work that way.

The commonwealth is at a crossroads when it comes to the relationship between citizens and their government.

In 2014, the General Assembly ordered the Freedom of Information Advisory Council to conduct a three-year review of the Freedom of Information Act, the open government statute which defines the critical relationship between citizens and their government.

The council has since seemed reluctant to consider any significant changes. And now there is reason to fear that this once-in-a-generation opportunity to recast the commonwealth's approach to government transparency could be squandered without citizen intervention.

Consider the following:

Out of 48 specific reasons public officials can cite when they chose to keep Virginians from seeing public records, the council's work group said 38 should stand.

It is still mulling how to handle records that businesses give governments when they seek favors. In just one case, it acted to make clear that an exemption should not be used, as it has been, to keep secret records that officials are required to release.

Of the 24 reasons public officials can cite for their overused option of meeting behind closed doors, the working group recommends letting 18 stand. It is eliminating an exemption for an entity that never existed. It is studying the rest.

And when asked to consider a mechanism for punishing those who willfully violate the law, the council dismissed the proposal out-of-hand. Our experience tells us that there must be criminal penalty to enforce compliance, as many other states use in their open government laws.

The FOIA council is a state agency that effectively serves as the point of contact for inquires about the commonwealth's open government laws. It answers questions, issues advisory opinions and, since last year, has been conducting a thorough review of the law.

But we are concerned that the 12-member board leans too heavily toward public officials and lacks strong advocates for openness. We worry that its members, though well-intentioned public servants, are informed by their experience in government.

They do not know the frustration of seeing officials in Loudoun, Isle of Wight, York or Poquoson counties give vague reasons for closing the door on the public time and time again. They have never tried to pry documents out of the Sheriff's Office in Loudoun or city halls in Richmond or Newport News, or hit a series of dead ends in trying to determine how one construction bid was selected over others.

Virginia's FOIA needs to be broader. It should be easier for citizens to use and harder for officials to violate. And it must live up to the expectation in its preamble that "the affairs of government are not intended to be conducted in an atmosphere of secrecy."

It takes everyone to achieve that. If you believe that a transparent government is one that best serves the people, and that Virginia would be better for having open government laws that honor the people's right to know, then we urge you to contact the council, as well as its members, and say precisely that.

The FOIA Council can be contacted at 804-225-3056 and .(JavaScript must be enabled to view this email address). The executive director is Maria J.K. Everett, who can be reached at .(JavaScript must be enabled to view this email address).

We urge you to contact your local state delegate or senator, too. Or write a Letter to the Editor. We’ll do our part. In coming weeks, we’ll put all candidates for public office in November’s local elections on the record about how they stand on open government. You get to decide if they earn your trust. No exemptions.

This editorial was written in cooperation with the Virginia Press Association. Parts of it were written by Maria Porto, VPA board chair and Vice President of Content for the Daily Press Media Group of Newport News.

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