House Bill No.449. A disaster waiting to happen.

Virginia House Bill No. 449 is, in my opinion a disaster waiting to happen.

A summary of this bill is offered through the LIS website:

Freedom of Information Act; injunctive relief for public bodies under certain circumstances. Provides that any public body may petition a court for injunctive relief to restrain a requester from harassment or other abuse of the rights or privileges granted under FOIA.

The actual wording added can be found in the full text of the document (Secion C.4) and is noted in italics. Please see the document so that you can see it in context.

Why is it a disaster? How about because it contains absolutely no defining criteria for ‘certain circumstances’ or ‘harassment’. Section C is the part of FOIA that gives jurisdiction the right to petition the court for extra time in which to comply with a FOIA request.   This leaves it open for:

• jurisdictions to create a threat to hold over the heads of anyone choosing to ask for public records.
• jurisdictions to apply the law in an arbitrary and capricious manner.
• jurisdictions to tie a request up in the legal system until it is too late for the requester to propose alternative to actions that could have a deleterious effect on him/her self or the general public.

I believe that it also represents that some erroneous assumptions have been made on the part of legislators that all jurisdiction make all reasonable efforts to keep the public informed.

Case in point:

Almost 2 years ago I made a request for the Minutes of public meetings for the Town Council and Planning Commission. I made the request for 5 years worth of both documents. I did this because the Town did not have any of these basic informational documents on the town website. Since I had never created a webpage or scanned a document before, I had to teach myself how to get those documents to a website. Using out-dated equipment, I was forced to hand-feed each document. This was when I noticed the large number of documents that were missing. The Town Council meeting minutes were virtually perfect. The Planning Commission meeting minutes were missing almost 50% of the minutes for those meetings.

Today, almost two years later, the Town of Christiansburg is not posting these meeting minutes on a nice updated webpage that also includes other information. Those meeting minutes go back to the 2006-2007 fiscal year, so my first thought was that now some of those missing minutes would be available.

Unfortunately that was not true. (Of course, the minutes of those meetings are not required to be posted but since I waited far past the extension required by FOIA for them to fulfill my request.)  I had left a request to be notified when the rest of the documents were available and to date I have not received any such notice.

I had hoped that with the development of a Town website that seemed to be designed to inform and educate the public, those documents would at last appear. Here is what I found: (Red indicates where meeting minutes are missing while yellow indicates agendas are missing. The missing agendas, in some cases, can be found within the Joint Public Hearing section of the Town Council meeting minutes of the same evening, but not always.)

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Where jurisdictions are delinquent in processing public documents, isn’t it the right of citizens to request those documents? Will this bill simply give such jurisdictions a means of avoiding complying with FOIA while they struggle to reproduce meeting minutes that are years old and where only scribbled notes remain? This is further compounded when you have jurisdictions that do not record such meetings so that the minutes can be effectively reproduced on paper or provided for the public to view or listen to in an audio/video format?

This bill, particularly in the face of recent SLAPP cases designed to stop people from obtaining such documents or from speaking up at public meetings, contains a strong potential for abuse. Another tool capable of frightening citizens into not participating in their government or preventing the press from having access to documents in a timely manner should not be allowed.

For far too long, the Freedom of Information Act has been a tool of partisan politics, closing more tightly, then opening up again. It is citizen’s right to have access to documents that will be sacrificed if this Bill passes. Where citizens cannot count on government to preserve their rights to access of these documents, citizens have to step up and hold that government accountable.

If such a bill is passed, I would certainly hope that it would include language such that if the citizen’s request is found to be justified, the jurisdiction would be required to pay all legal fees incurred and for any loss of income necessitated by the citizen’s need to appear in Court. And, that a review of any decisions made that would have been likely to have been altered if the citizen had obtained the documents in question be overturned. This last is a bit hard to do if a steam or forest has been destroyed, property values have declined as a result of the action, or commitments have been made to other parties who will be harmed if the decision is reversed.

In other words, this looks like someone is about to open a can of worms that is likely to significantly increase revenues for attorneys and increase the fear of citizens simply making legitimate requests of their government. Just how many years is a citizen required to wait for access to documents that provide information that could affect his/her life?

Oh, and by the way, doesn’t this violate federal law? Come on, I know there are a lot of attorneys out there. Can someone offer a non-professional opinion?