The University of Florida plays host to the Marion Brechner Citizen Access Project. This is another one of those sites that evaluates states on the basis of how much ‘sunshine or shade’ exist in the government. You can look at the information on a particular state, compare two states or look at one category of the law over all 50 states.
While I was going through all the offerings of this site, I found something so simple that I had overlooked it previously. As I am now in the stage of discussing Virginia FOIA, I thought it might be worth discussing now: the definition of Public Records. This site gives the following definition of Public Records in Virginia:
The Virginia Freedom of Information Act defines “public records” to mean all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. Va. Code Ann. § 2.2-3701 (2002).
Some interesting features arise when you look at the State of Virginia and how it scored on public access of records. The site uses a scale of 7 to evaluate these.
7 = Sunny – completely open
6 = Mostly Sunny – mostly open
5 = Sunny with clouds – somewhat open
4 = Partly Cloudy – neither more open nor more closed
3 = Cloudy – somewhat closed
2 = Nearly Dark – mostly closed
1 = Dark – completely closed
Some of the lowest scores for Virginia included:
- Political caucuses of state legislature which are not considered to be openmeetings
- Hardware and Software Requirements: policy-makers protect public access to computers when designing government computer sytems
- Internet, Regulation of Professionals: information about the licensing or regulation of doctors, lawyers, etc. be online
- Private Schools: no reference to private schools exists within open records laws.
Of particular interest to me was the score of 3 (Cloudy – somewhat closed) on Open Meetings, Informatl Meeting (Public Meetings) that I believe serves as a major loophole for government to circumvent the right of citizens to know.
The gathering of employees of a public body shall not be deemed a “meeting” when the purpose of such a gathering does not include the discussion or transaction of any public business and the meeting was not called or prearranged with this purpose. VA. Code Ann. § 2.2-3701, Va. Code Ann. § 2.2-3707 (G) (i) (2007).
Okay, so 3 or 4 Town Council Members meeting to go for long walks or work out together at the Rec Center, when no one else is around are likely to avoid discussing business? Come on…give me a break. All they would have to do to prevent any sense of impropriety would be to be sure that someone else was there????
Forgive me. I digress. I said I would write about FOIA through July 4th, not the Town of Christiansburg, but the Town of Christiansburg government IS subject to FOIA. If state FOIA laws need to be changed in order to prevent this type of perception, then so be it.
It should be noted that out of all the 50 states, Virginia is 7th highest on this score. None of the states scored more than Partly Cloudy (neither more open nor more closed). Nebraska’s law has a bit more strength when it specifically says:
Informal meetings, chance meetings and social gatherings “shall” not be used for the purpose of circumventing the Open Meetings Act. Neb.Rev.St. § 84-1410 (4) (2006).
South Carolina expands on this:
No chance meeting, social meeting, or electronic communication may be used in “circumvention of the spirit of requirements” of the open meetings requirements to act upon a matter over which the public body has supervision, control, jurisdiction, or advisory power. Code 1976 § 30-4-70 (c) (2007).
Nebraska and South Carolina are the highest scoring states in this category. The lowest scoring states (Nearly Dark) are Alaska, Colorado, Connecticut, and Mississippi.
To get back to Virginia FOIA law itself, our resident experts are (in my opinion) the Virginia Coalition for Open Government. In particular, a great starting place for learning about FOIA and what it can mean to you as a citizen, they post a FOI Citizens’ Guide online. They have a lot of other useful and necessary information available that I will discuss more in following articles.
The FOI Citizens’ Guide provides an overview of the rights of citizens including direct links to the relevant state codes. It also provides information on how to enforce your rights. Take some time to check out this site and while you’re wandering around on the internet, you might want to check out the Citizen Initiative for Transparency site that is now available. You may find some interesting links and resources there as well.
