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City of Virginia Beach: An example of Government and FOIA working together.

27 Jun

During these last few days of FOIA coverage, I would be remiss if I didn’t take a few minutes to talk about some of the positive steps that I have found where a local government is really working to insure the FOIA is used in their jurisdiction. The City of Virginia Beach is one such jurisdiction.

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 Of course, now, the software they purchased for handling online payments is obsolete and new software would have to be purchased in order to add the ‘bill pay online option.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!

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Posted by on June 27, 2009 in FOIA

 

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The Virginia Freedom of Information Advisory Council.

25 Jun

The Virginia Freedom of Information Advisory Council is a State of Virginia agency that focuses on Freedom of Information Issues. This source is available to individuals, public officials and the media. They also serve by providing advisory opinions which are published and are a searchable internet resource for anyone with a FOIA question.

Their Advisory Opinions section can be viewed in chronological order or in a searchable database. The chronological order is a good way to review recent trends (if any) while the searchable option allows you to look for a specific topic. Using searchable, I checked under the word “erosion” and found this neat bit of information indicating that when an investigation is performed related to land-disturbing activities where the ‘owner’ has violated some form of the erosion and sediment control laws, the name of the complaintant does not have to be released by the investigating agent. That information can be withheld as part of the records causing the investigation.

Another interesting find there was under the search for “Planning Commission”. This involved the presence of Town Council members at a Planning Commission Meeting who participated in the discussion about business upon which they would likely have to act in the future. In this case, the meeting should have been advertised as a Joint Public Hearing. Another part of the question answered dealt with the appointment of Town Council Members on Planning Commission Subcommittees. Some interesting discussion is found in the document, and some good ideas of what is and is not allowed to happen in public meetings.

Another good one I found deals with Committee Meetings (notice and minutes) and FOIA violations that occurred involving this. The discussion is thorough and sites relevant FOIA laws concerning notice requirements of all committees. It further clarifies that any committee or group formed to perform a delegated function or to advise the town is subject to FOIA. Regular meetings, special, and emergency meetings all require notices. That notice time frame is a minimum of 3 WORKING days (excluding the date of the meeting as well as holidays and weekends) for regular meetings, and at the same time that members of the group are notified of special and emergency meetings. In addition, anyone who has requested notice of meetings should have been noticed. Requesters of notices can be contacted through email or telephone if the requestor agrees to this. (So if you are someone who wants to be noticed, you can get it through the mail, or you could ask the town to call you instead – it is not required that they provide this service but it may be something they will consider for people who do not have internet access but have requested notification and the timeframe is such that mail service just would not work). It also clarifies another question that I have been asked recently. The committees themselves are not required to take minutes except where membership of the committee includes a majority of the governing body.

So there ya have it. A great resource to look up information on FOIA that may be of particular interest to you. If you have a question about the way a meeting was conducted, whether or not you were allowed to be in the meeting, what documents you have a legal right to obtain or view, here is one good place to find an answer.

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Posted by on June 25, 2009 in FOIA

 

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Ever wonder what Virginia Courts have ruled in FOIA cases? Or, how FOIA is being changed?

23 Jun

Well, the Virginia Coalition for Open Government is THE place to look. There are 3 blue squares at the top of their screen labeled: Virginia’s FOIA, In the News, and …Etc. Directly under each of these is a description of the offerings held there. Under Virginia’s FOIA there is one section on FOIA opinions from state courts. Click on “Court Opinions” in the dropdown menu and you will be provided with a list of Court opinion links.

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.

Every school board shall submit at least once each year to the governing body or bodies appropriating funds to the school board a report of all its expenditures. Such report shall also be made available to the public either on the official school division website, if any, or in hard copy at the central school division office, on a template prescribed by the Board of Education.

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.)

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Posted by on June 23, 2009 in FOIA

 

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Virgina FOIA Evaluation … more on the low scores.

23 Jun

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.

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Posted by on June 23, 2009 in Citizen Participation, FOIA

 

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Open Government Issues around the Nation and Within the State

22 Jun

I spent some more time on the Sunshine Review site mentioned in my last blog and found an interesting area where news is provided that relates to open government and the FOIA: The Sunshine Review – The Bad News. Again, this is a work in progress to which anyone with computer access can contribute. Even though this first page of the section deals with national issues, Bedford County School System seems to be the hottest topic around.

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.

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Posted by on June 22, 2009 in FOIA

 

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Virginia is one of the top10 states when it comes to transparency!

20 Jun

This bit of information comes from something called the Sunshine Review‘s SunshineOnline webpage – The My Government Website Project. This is a wiki-based project where information is available on government WEBSITE transparency for states but including county, city and school districts. It is a work in progress, with more data coming in all the time. It encourages citizen participation by having citizens do the evaluations (available on their website). It is a fairly simple process and is fully explained. Although they place the State of Virginia within the top 10 states for open government, DO NOT assume that status holds for all jurisdictions within the state.

Interesting information about Virginia Counties includes based upon this sites evaluative criteria:
Only 3 counties do not maintain an official website: Craig, Lee, and Mecklenburg.
Of the 95 counties and 39 city counties (which are included at this source)
Budgets: 35 post full, 32 post partial, and 25 post no information
Public Meetings Notices: 42 include all notices of public meetings, 42 provide partial information, and 8 provided no information.
Information on elected and administrative officials: 74 provide all information on both sets of officials; 14 provided only partial information on elected officials, and 17 only partial on administrative officials. Only 1 county provided neither.
Permits and zoninginformation: 77 provided all, 5 provided partial, and 10 provided none.
Audits: 38 provided all information, 10 provided partial, and 44 provided none.
Contract with county vendors: 13 provided full information, 26 provided partial, and 53 provided none.
Disclosure on taxpayer-funding lobbying membership: 19 provided full information, 0 provided partial, and 73 provided no such information.
How to request public records (FOIA): 6 provided full information, 12 provided partial, and 74 provided none.
Tax information: 66 provided all, 9 provided partial information, 17 provided none.

A table providing information on each individual county for the above parameters is available at one of their links. A quick look and I saw that the data might not be current. One of the recent changes to Virginia State Law is that jurisdictions with a website are now required to post budgets online. If you live in or work for one of these jurisdictions, it may be worth the effort to go to the site where you can update information. As I noted previously, this is a work in progress and is being updated. YOU can be a part of the process.

All of these are based on those documents which are part of the public’s right to know and are covered under the FOIA. If you wish access to any of these documents, a FOIA request should provide it for you. Given that each FOIA request cost taxpayer time and money to receive, research, and produce the request, and the fact that most jurisdictions barely have the staff to handle routine business, it would seem that more jurisdictions would put forth a dedicated effort to provide these documents on their websites, saving money and reducing staff workloads for other projects.

They do not provide information on towns in Virginia, but I have a very reliable source indicating that there is something similar being developed for the Towns of Christiansburg as well. However, would it be needed at all if the State Legislature would simply develop standards that denote these basic documents be posted on all websites. One little statute would end the problem, save money, and free up worker time.

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Posted by on June 20, 2009 in FOIA

 

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How FOIA could have gone wrong!

18 Jun

There is a nice read online:
Freedom of Information: How Americans got their right to know by George Kennedy.

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

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Posted by on June 18, 2009 in FOIA

 

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FOIA used to identify problems at many levels.

16 Jun

Only 17 days until FOIA turns 43 years of age.

FOIA has been used by the reporters and investigators for decades. In some instances, this has resulted in the headlines you’ve seen in your local papers and now carries forward to be seen on the cable news networks. George Washington University’s “The National Security Archive” is a great repository of such FOIA based news items. For instance, here are some samples from their 2001 list:

#1. “Recycled uranium spread wider than thought,” USA Today, 25 June 2001.
#2. “NASA mistakes,  optimism cost taxpayers billions,” Florida Today, 15 June 2001.
#9. “Ritalin prescribed unevenly in U.S.,”
#12. “For VIP’s brother, fish are biting at a tiny lake; State supplies big trout to region where department chief grew up,” San Francisco Chronicle, 2 April 2001.

Another source of where data can be found showing how the use of FOIA has provided important information about government activities is the First Amendment Center. From that page the “Significant FOIA victories” section:

* FOIA requests prompted the Central Intelligence Agency to release documents detailing mind-control experiments it conducted in the 1950s and early 1960s in which unwitting U.S. citizens were administered hallucinogenic drugs, electroshock and radiation.

* After being sued by the National Veterans Task Force on Agent Orange, the Air Force released a history of its use of herbicides during the Vietnam War, allowing researchers to determine which U.S. troops had been sprayed.

* Responding to numerous FOIA requests, the Federal Bureau of Investigation released papers over the years about its 1950s-’60s COINTELPRO program, in which it infiltrated leftist antiwar and civil rights groups as well as the women’s movement to monitor and sabotage their activities. In 2002, after a 17-year FOIA legal battle, the FBI was forced to turn over the details of its unlawful intelligence activities at the University of California during that period.

* In 1982, The Kansas City Times acquired Department of Agriculture papers showing that although a large percentage of meat packing plants failed to meet the department’s standards, its inspectors routinely gave them satisfactory reports and approved contaminated meat.

* In 2000, environmental groups obtained records from the Food and Drug Administration that showed it was failing to control the levels of mercury in fish even though its own tests showed them to be too high. By 2001, the FDA had warned pregnant women against consuming shark, swordfish and mackerel. However, it failed to include mercury-rich tuna. Another FOIA request, this time by the Environmental Working Group, revealed that the FDA had come under intense pressure from the tuna industry to exclude tuna from the warning.

* The Department of Transportation was forced to release a videotape of crash-test dummies flying out the rear of Chrysler-made minivans on impact, owing to a defect that had contributed to numerous deaths and injuries between 1984 and1995.

* The Louisville (Ky.) Courier-Journal filed FOIA requests to get Department of Energy maps showing radioactive and chemical hazards around the Paducah Gaseous Diffusion Plant, which had long made uranium for nuclear weapons. The maps, released in 2000, showed the levels of plutonium contamination to be much higher than the government had admitted.

If anyone is sitting out there and thinking that FOIA does not matter to them, a look at the above information may change their minds.

The Freedom of Information Act is not always easy to use. In many cases these documents and the information they contain, were not released until the person/agency making the request went through the court system. Sometimes, that trek went all the way to the Supreme Court.

It is the right of people to know what their government, whether national, state, or local is doing. It is the right of people to know how their tax money is spent, what steps are being taken to provide for the health, safety, and well-being of citizens. It is the right of people to know not only the successes of government, but the failings as well.

I will close with this quote from the  Carter Center that gives a slightly different perspective in its last two sentences. http://cartercenter.org/peace/americas/nav_question4.html
“Access to public records gives citizens the opportunity to participate in public life, help set priorities, and hold their governments accountable. A free flow of information can be an important tool for building trust between a government and its citizens. It also improves communication within government to make the public administration more efficient and more effective in delivering services to its constituency. But, perhaps most importantly, access to information is a fundamental human right and can be used to help people exercise other critical human rights, such as clean water, healthcare, and education. Access to information has been more recently recognized as an instrument that can be utilized to fight poverty in developing nations.”

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Posted by on June 16, 2009 in FOIA

 

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