What is and is not accessible via FOIA in Virginia
In the ongoing case regarding the FOIA requests made with reference to communications with Loudoun County Supervisors an interesting assertion has been made. In the comments section to one of my previous posts on the matter, a principle in the case (Sally Mann) makes this statement:
All email with a supervisor is “political” and if it is “political” that makes it a FOIA’ble doc. It is important to have it this way so there are no secret substratas, no secret subgroups influencing public policy or decisions–the whole point of FOIA is to keep government open and to not allow secret communication or secret meetings…
(The comment ends with the ellipsis.) My definition of “political” encompasses far more than the work done by a sitting politician in the pursuit of their job, in this case Loudoun County Supervisor Lori Waters. This raised the question, however, of what documents are considered by the actual FOIA to be, well, “FOIA-able.” For that, we need to look at the definitions provided by the law:
“Public records” means 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.
Those last 4 words are the critical point and that’s confirmed by the ruling that Judge Dean Worcester just handed down, which was the subject of that last post I linked to above. In the report on the ruling, the Judge’s pointed comment toward the General Assembly was this:
The General Assembly may want to create an exemption for personal or private communications, or to clarify the definition of “transacting public business,” Worcester concluded, but it hasn’t done so yet.
The critical issue of whether a record is subject to a FOIA request, then, is whether it can be reasonably classified as pertaining to the transaction of public business. If Ms. Waters wrote an e-mail to her campaign manager talking about the status of their bank accounts (balances, what banks they’re using, account numbers, etc.) that would most certainly be a “political” discussion. I would find it very hard to credit the idea that such a discussion could be considered a case of Ms. Waters “transacting public business.” Another example would be Ms. Waters talking with a family member via e-mail about whether or not the recent scientific breakthrough regarding stem cell generation should remove the embryonic stem cell funding fight from the upcoming Presidential races. Again, that’s clearly a “political” discussion that’s just as clearly not a matter of Ms. Waters transacting public business, particularly here in Dillon-rule Virginia that places the whole issue outside the scope of a County government.
It is this concept that makes the Judge’s ruling suspect to me. The Judge has effectively declared that the single use of an e-mail system on a private computer to discuss public business – to engage in the transaction of public business, to be specific – has classified every conversation on every matter to every recipient ever made using that same computer and e-mail system as a public record. I do not see how a reading of the law, as written, can support such a conclusion. The law is clearly written to be document-specific on whether a record falls within the scope of FOIA. It does not state that the inclusion of such a document into a private record storage renders the entire record store open to the public via FOIA. This was, and remains, my point with regard to this case.
I still think that the GA should step up and write a clarification of this law. Based on Judge Dean’s actions, it’s apparently needed. I also think that judges should err on the side of caution in cases such as these and do what they can to protect the privacy of individuals – those serving in public office no less than those who aren’t. It’s been suggested that the judge could have and should have appointed a “court arbiter” to go over the redacted e-mails in this case and make a call as to whether or not the redacted information dealt with the transaction of public business. That would have provided an unbiased eye on the e-mails (to remove the concept that the person with the interest in keeping things private being the one to determine whether something should be redacted) and a shield for the official’s personal communications such that they weren’t just handed over to a hostile party. I think that would have been the wisest approach in this case.
In any event, this is the crux of the argument headed into appeal. I think, if the appeals board is going to give the law an honest read, they will have to overturn this ruling.
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