During the last few minutes,  an event occurred which has not been seen in Christiansburg Council Chamber in decades (if not in forever). The Mayor rose from his seat and picked up a packet of manila envelopes. He told council members that he was passing this out and that it contained “Confidential Personnel Information” upon which he hoped Council could act at the next Town Council meeting.

Obviously, this had to be big news for it to be announced in such an unusual manner. (Usually, these things are just passed out to council without citizens having any knowledge.) Clearly, it was intended to make people aware that the information contained was confidential and they wanted the audience to be sure and understand that fact.

Unusual behavior always captures my interest. So, I found myself wondering what could be up? Was someone resigning or something? Was this the resignation of the Chief of the Rescue Squad that some had been expecting? I have been keeping track of bills affecting FOIA and could not think of anything that would have precipitated such a change. Guess my only other option would be to go to the LIS website, pull up the FOIA Codes and start reading again. Here is what I found:

• From: § 2.2-3705.1. Exclusions to application of chapter; exclusions of general application to public bodies. The following records are excluded from the provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law:
  • 1. Personnel records containing information concerning identifiable individuals, except that access shall not be denied to the person who is the subject thereof. Any person who is the subject of any personnel record and who is 18 years of age or older may waive, in writing, the protections afforded by this subdivision. If the protections are so waived, the public body shall open such records for inspection and copying.
• § 2.2-3705.8. Limitation on record exclusions.
  • A. Neither any provision of this chapter nor any provision of Chapter 38 (§ 2.2-3800 et seq.) of this title shall be construed as denying public access to (i) contracts between a public body and its officers or employees, other than contracts settling public employee employment disputes held confidential as personnel records under § 2.2-3705.1; (ii) records of the position, job classification, official salary or rate of pay of, and records of the allowances or reimbursements for expenses paid to any officer, official or employee of a public body; or (iii) the compensation or benefits paid by any corporation organized by the Virginia Retirement System or its officers or employees.
  • The provisions of this subsection, however, shall not require public access to records of the official salaries or rates of pay of public employees whose annual rate of pay is $10,000 or less.
  • B. Nothing in this chapter shall be construed as denying public access to the nonexempt portions of a report of a consultant hired by or at the request of a local public body or the mayor or chief executive or administrative officer of such public body if (i) the contents of such report have been distributed or disclosed to members of the local public body or (ii) the local public body has scheduled any action on a matter that is the subject of the consultant’s report.

As a quick aside, I see that my favorite section of the code still exists:)

• § 2.2-3707. Meetings to be public; notice of meetings; recordings; minutes.
  • H. Any person may photograph, film, record or otherwise reproduce any portion of a meeting required to be open. The public body conducting the meeting may adopt rules governing the placement and use of equipment necessary for broadcasting, photographing, filming or recording a meeting to prevent interference with the proceedings.

When “Confidential Information” is involved, one can reasonably expect a ‘closed meeting’ to be just around the corner for discussion (remember that no action can be taken during the ‘closed meeting’, just a discussion on the matter to be acted upon. Since the Mayor did note it was confidential personnel information, that narrows the scope of what would constitute such a meeting. This information can also be found in the FOIA. Here are those sections applicable to ‘personnel’:

• § 2.2-3711. Closed meetings authorized for certain limited purposes.
  • A. Public bodies may hold closed meetings only for the following purposes:
    • 1. Discussion, consideration, or interviews of prospective candidates for employment; assignment, appointment, promotion, performance, demotion, salaries, disciplining, or resignation of specific public officers, appointees, or employees of any public body; and evaluation of performance of departments or schools of public institutions of higher education where such evaluation will necessarily involve discussion of the performance of specific individuals. Any teacher shall be permitted to be present during a closed meeting in which there is a discussion or consideration of a disciplinary matter that involves the teacher and some student and the student involved in the matter is present, provided the teacher makes a written request to be present to the presiding officer of the appropriate board.
    • 4. The protection of the privacy of individuals in personal matters not related to public business.
    • B. No resolution, ordinance, rule, contract, regulation or motion adopted, passed or agreed to in a closed meeting shall become effective unless the public body, following the meeting, reconvenes in open meeting and takes a vote of the membership on such resolution, ordinance, rule, contract, regulation, or motion that shall have its substance reasonably identified in the open meeting.
    • C. Public officers improperly selected due to the failure of the public body to comply with the other provisions of this section shall be de facto officers and, as such, their official actions are valid until they obtain notice of the legal defect in their election.

Given the above excerpts from FOIA (the full text is available at the Legislative Information System website), it would seem reasonable to assume that either someone is resigning or someone is being disciplined. However, in order to make reasonable assumptions, one must be operating within a ‘reasonable environment’. Since we’re dealing with the Christiansburg Town Council, where the ‘reasonable person’ test would be hard pressed to find a basis for comparison, who knows. Rumors are already running rampant with the most common two being the Rescue Chief or the Town Manager are resigning. Perhaps a FOIA request is in order so that if it is refused the actual statue involved would be noted. That would at least give people a general idea but no specifics.

The Auditor of Public Accounts provides the citizens of Virginia with a way to see what is happening financially, with their specific County, City or Town.

On a website entitled “Commonwealth Data Point: Transparency at Work in Virginia” you can find information about expenses and revenue at the State-wide level or by jurisdiction. For instance, by clicking on the Local Government tab at the top, you get a drop-down menu that allows you to choose from “Expenditures”, “Revenues”, or “Local Comparison Analysis”.

Both “Expenditures” and “Revenues” then allow you choose “County”, “City”, or “Town”. This will take you to a list of all of the jurisdictions within the chosen category and provides the overall information for FY2002 thru FY2008.

Example 1: Local Government Expenditures (note that all of those numbers in blue are links which will take you to more detailed information)

…and …

Example 2: Local Government Revenues (note that all of those numbers in blue are links which will take you to more detailed information)

The Local Comparison Analysis option allows you to select two different localities, select fiscal years for those localities

Example 3: Comparison of Towns of Christiansburg and Front Royal for the Fiscal Year 2007 (Details on 2008 do not seem to be available yet … possible effect of budget cuts?)

Expenditures	Christiansburg FY2007	Front Royal FY2007
General Government	$1,671,785.00	$2,291,155.00
Judicial Administration	$0.00	$0.00
Public Safety	$5,824,693.00	$3,553,958.00
Public Works	$6,353,801.00	$3,675,203.00
Health and Welfare	$19,674.00	$49,523.00
Parks and Recreation	$1,965,578.00	$61,712.00
Community Development	$1,550,899.00	$549,706.00
Nondepartmental	$0.00	$0.00
Education	$0.00	$0.00
TOTAL EXPENDITURES	$17,386,430.00	$10,181,257.00

The key to effectively using this data is to make sure you are not comparing “apples to oranges”. Demographically, Christiansburg more closely fits into the same profile as Front Royal rather than say… Blacksburg.

Blacksburg has a population nearly twice that of Christiansburg and Front Royal. Blacksburg’s Population Density is also roughly twice that of Christiansburg and Front Royal. Christiansburg shows a Median Household income of nearly twice that of Blacksburg due to the number of students in Blacksburg that skew the data, but Christiansburg and Front Royal are fairly close.

While Vienna and Herndon are both close in total population to Christiansburg, that is where all similarities cease. Vienna and Herndon both have approximately 1/3 the land area, twice the population density (Vienna) and 5 times the density (Herndon), and twice the Median Household Income.

In other words, for Christiansburg data to be compared to Vienna or Herndon, you have to keep in mind that they are significantly different in many areas. Front Royal more closely matches the demographics of the Christiansburg population.

Taking a look at the 2009 Comparative Data that is also available on the APA website one can take a much closer look at Towns.

I hope that some of you will take the time to explore the offerings found on this website. It is there for citizens and is a good example of Open Government!

The City of Virginia Beach formed a committee to assess Internet Access of Public Information. The report they generated is available online and provides a good example of how government can work with citizens and the FOIA to help keep people informed. Although the study focuses on Real Estate issues, it is certainly a format that could be applied in a multitude of areas where the FOIA is concerned.

As with any legitimate study, they looked at the pros and cons, and they looked at what other jurisdictions were doing in order to develop recommendations for their City to apply. Their recommendation include a wide range and even allows for those businesses that utilize that data to be the ones to carry the greater financial burden, rather than taxpayers. The option would provide some special features for those businesses that use the system fairly extensively, but would be a pay option.

One of the interesting things I found was the part of the report where it was noted that under the FOIA, there are more things required to be posted online when the jurisdiction has a website where they conduct routine business. Under this portion of the law, it would appear that the jurisdiction could have what is essentially an advertising website and would not be required to post public documents on the website.

It is this last that brought to my mind the rationale used by Town of Christiansburg government for having a website and the capabilities to handle bill paying online for about 10 years and never utilizing it. Of course, now, the software they purchased for handling online payments is obsolete and new software would have to be purchased in order to add the ‘bill pay online option.

So, taxpayer money was spent to buy software that was never used, that is now worthless, and more taxpayer money will need to be invested if bill paying online is ever to be available for Christiansburg residents. Not only is it the loss of taxpayer money for the purchase of the program, other tax money was essentially thrown away. What was spent in mailing costs, paper, printing, copying, envelopes , staff time, etc. was lost as there was no paperless option available for bills to be sent out automatically via email, or available to citizens through the website, and payments to have been made on the website. Now, in order to save some of that money, the Town will have to purchase new software and start over.

A friend of mine once told me nobody does something for nothing. In this case it rather looks like the Town made a ‘show’ of responding to citizens by setting up a dead website and buying software. Rather than have to post all of those documents online and have them readily accessible to citizens, they elected to let the ‘pay on line’ option and the ‘website’ all but die of neglect. Was it really worth all of that taxpayer money to keep from having to post meeting notices, agendas, minutes, and other public documents online? If so, why? Who benefited while citizens lost? Gotta wonder!

Perhaps one of the best know current issues involves BJ Ostergren where it was ruled the person could continue to publish the Social Security numbers of prominent persons, but not private ones. This was done by Ostergren to protest the laws allowing land records containing full social security numbers to be published on the interenet. (One of those good for the goose, good for the gander moments!)

Another link under the Virginia’s FOIA is the 2009 Legislative Roundup. Here is where you can see bills that newly activated, are in front of the Governor for signing, or at the legislature being worked on, that will affect FOIA and your rights.

The Fraud and Abuse Whistle Blower Protection Act – this serves to protect employees that report Fraud and Abuse (bet you figured that out by the title, eh?) Unfortunately, it sees to only apply to people employed by the State. It includes a long list of records that are excluded from FOIA as part of that process. These are specific to the investigation involved and the records that would normally be available to the public are not affected.
Remote access to land records: Prince William County may establish a pilot program assessing fee. This newly adopted Act provides for charges to be attached to the online records by the general public. Not only is there a fee for viewing, there is an additional fee to download images similar to the existing copying fee. (If the internet was suppose to help people get easier access, this one is a real slap in the face to citizens. Sure, all those companies that access these types of things can afford the related fees. Not all citizens can do so. One of the things already keeping people away from documents is the cost. This looks like a great way to insure that big business gets the information that many citizens cannot afford. Healing the digital divide by making information available while then turning around and setting it up so that it replaced by an economical divide is one giant step backwards. One of the biggest reasons to use the internet is because often citizens do not know what it is that they need. It can require hours of looking at information. Having it available on the internet means that that can be accomplished without tying up employees to help for hours or even days at a time, helping the person. How is it saving money, or generating revenue, to charge for something that is saving worker time and money (paper, ink, copy machines all become the cost of the person/group looking rather than the taxpayer). I personally hope this one is put to the curb after the trial period, or significant modifications are made to insure that ALL citizens, regardless of income level, have the same degree of access. A sliding scale fee comes to mind. Ironically, the required report on this pilot study only requires a summary of the level of participation, costs, and revenues. Nothing is in place to determine who now finds themselves without access or how much has been saved in personnel and processing by having the data online in the first place.
Expenditures; annual report thereof provided by school board to be made available to public.

Be it enacted by the General Assembly of Virginia:

1. That § 22.1-90 of the Code of Virginia is amended and reenacted as follows:

§ 22.1-90. Annual report of expenditures.

That is just a sample of some of the information you can find on this website. More discussion is coming. In the meantime, look for yourself. Don’t count on someone just telling you the way things are…check out the facts. (Darn, there I go again, slipping into that Christiansburg Town Council area again. Just wait until after July 4th! I’ve got a lot of time to make up and a lot of articles ready to be posted.)

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.

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.

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:

South Carolina expands on this:

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.

At the bottom of the page, you’ll find a list of states and by clicking on Virginia, you will be taken to a list of the myriad of issues related to government accountability within the State of Virginia. Although labeled The Bad News (and there is a lot of that covered), you can also find some bright spots like this Jan. 17, 2009 entry:

Secrecy breeds distrust

“The most refreshing change in Franklin city government over the past six months has been the City Council’s emphasis on openness, transparency and accessibility.

That collective spirit has begun to restore the broken trust between citizens and City Hall that manifest itself in the May election, when two newcomers running on a platform of greater citizen involvement scored runaway victories.

The City Council’s challenge now is to demonstrate that openness is an ongoing commitment, not an election-year show.”

I will end on that note and hope that more such reports will be found in the future. “Broken Trust” is a long festering wound throughout all levels of government. It will take time to restore. YOU can help speed the process by being an active participant in government. Good government merely begins in the voting booth. Like a garden, it must be carefully tended to be productive. Plant those seeds in the voting booth, but then be prepared to follow through with monitoring and intervening when necessary to grow a good, healthy, and responsive government.

It takes you through a brief history of FOIA but also what COULD have happened to FOIA along the way. A lot of fancy words accompanied the signing of the FOIA. On the surface, the rhetoric would make it appear that Pres. Johnson was happy to sign such a wonderful piece of legislation.

It is clear there was a long and hard battle (starting in 1955) to bring the FOIA to the point of being signed on July 4, 1966. Although a weak and watered down version of what was desired, it was a crucial first step. In the article noted above, it is reported that there were a lot of concerns about the number of exceptions that were likely to be requested and put into place. If enough of them existed, the very document meant to support Freedom of Information COULD have become the law that actually strengthened the government’s right to secrecy!

Fortunately, we had some editors of major newspapers (a highly competitive field) that set aside competition and joined forces to keep pressure on to make FOIA what it was meant to be, a way for citizens to learn what was going on in their government. This drive continued to grow and apply pressue until the FOIA was actually strengthened rather than weakened with the 1974 amendment. Now, with the ‘internet age’ fully upon us, the numbers of those striving to find information, lookiing for truth is expanding. It has the potential to be inside every business, every home, ever vehicle, every backpack, and many phones. (Case in point, the information we are still receiving from Iran despite what appears extraordinary government efforts to stop those leaks of information.)

Virtually nothing happens or is done these days that someone can’t find out about. It seems to me the logical response would be for government to maintain itself as openly as possible to public scrutiny. It is far better to be open with errors and ommissions now than to have them reach out and grab you in the future.

Now, all 50 states, the District of Columbia, and some Territories all have their own versions of the FOIA at the state level. Florida was the first to do so in 1967. the “Sunshine Laws” of Florida remain considered some of the best in the country. However, not all state FOIAs are created equal.

Just by moving to another state, you could suddenly find yourself losing rights you had in the state in which you previously lived. In other cases, you could have spent all of your life in a state with limited FOIAs and relocate to a state like Florida where Sunshine has long been the standard.

How can a person keep up with it all? Easy answer – one person cannot do it. It requires many people watching and working to keep the information flow going. However, each person can access some of the information at places like the Sunshine Review Click on Virginia (the word) or Virginia on the map to get information specific to the State of Virginia.

This site, like most of the wiki sites is a work in progress. People are constantly updating the data you find here, so it is a good idea to check back often. Within the Virginia pages you will find: Statewide, School Districts, Counties, and Cities. (Yes, I’ve already written in to request that Towns be included:)

A closing thought:
“A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps, both.” Pres. James Madison, August 4, 1822