An earlier version of this story incorrectly identified the business executive at the center of a federal corruption case involving former Virginia Gov. Robert F. McDonnell. That executive was Jonnie R. Williams Sr., not Jonnie R. Williams Jr. This version has been corrected.
Getting public records can be challenging in Virginia, where the state attorney general’s office once charged nearly $15,000 for the release of emails related to then-Attorney General Ken Cuccinelli’s (R) ties to a well-connected businessman.
But 2018 may be a year for greater transparency, with two journalists entering the House of Delegates determined to revise Virginia’s Freedom of Information Act and Fairfax County — the state’s largest jurisdiction — launching a policy officials say will make it easier for the public to get public records.
Virginia’s 49-year-old statute is considered among the most restrictive in the country, with about 150 exemptions barring the release of certain information, which often result in heavily redacted documents. Advocates say the rules and the high prices agencies charge to produce documents that can be made public hamper journalists, community activists and ordinary citizens who seek information on topics that range from police investigations to safety inspections and local school test scores.
“It’s gotten to the point where I generally don’t even bother filing a FOIA request,” said Robert B. Weir, who chairs the planning commission in the town of Haymarket and, in 2016, was denied Prince William County records related to a new computer data center until he initiated a lawsuit. “It’s not worth the frustration or the expense.”
Roem, a former newspaper reporter in Prince William County, is preparing a bill that, among other things, would waive any fee for FOIA requests that take less than two hours to process.
She also wants to create an ombudsman position to facilitate requests made to state agencies — modeled after a 2015 Maryland law that seeks to weed out excessive FOIA requests and expedite those that are on topic. The Maryland law has received mixed reviews from journalists and residents of the state.
“That is the goal here,” Roem said. “To improve government accountability and to allow the people to have access to their documents.”
Virginia’s FOIA fees stirred controversy in 2013 when the state attorney general’s office charged state Sen. A. Donald McEachin (D) nearly $15,000 to begin a search for emails linking Cuccinelli to Jonnie R. Williams Sr., the business executive at the center of a federal corruption case involving Gov. Robert F. McDonnell (R). McEachin, now a Virginia congressman, unsuccessfully sued the state for the information.
Outgoing Del. James M. LeMunyon (R-Chantilly), who chaired an advisory council on FOIA issues, said the General Assembly has revised the FOIA law in some ways — requiring government agencies to hire FOIA officers to facilitate requests and post meeting notices on their websites, for example — and has grappled with questions of cost.
“The government doesn’t want someone to come in with a huge request and then the taxpayers will lose a lot of money because someone wants to see something,” LeMunyon said.
Other looming issues include how to treat text messages sent by public officials during public meetings and comments posted on their personal Facebook pages, he added.
Open-records advocates seek more wholesale changes, possibly including stiffer penalties for officials who violate FOIA laws. Washington state assesses a fee of $100 per day for each document improperly withheld from public view. Fines in Virginia can climb as high as $5,000, but violations are harder to prove, advocates say.
Megan Rhyne, director of the Virginia Coalition for Open Government, said she has a “wish list” for Virginia’s law that includes allowing residents in other states access to public records and, as in North Carolina, making transcripts of closed-session meetings available after a decision is made.
In Fairfax, Benjamin Tribbett, a former chief of staff to Supervisor Kathy Smith (D-Chantilly), said a county attorney once told new employees during a training session to regularly delete emails and explained how communications that include the county attorney’s office fall under attorney-client privilege and would not be subject to disclosure.
“To emphasize to people that you can delete an email and that if it’s not on your hard drive, it’s not FOIA-able basically speaks volumes of what the intent of that training is,” said Tribbett, a political consultant for Democrats who stopped working for the county earlier this year.
Fairfax officials disputed Tribbett’s account, saying employees are only instructed to delete personal emails and that employees undergo training that details which documents must be released.
“Fairfax County does not advise employees at orientation or any other time to delete emails to avoid FOIA,” county spokesman Tony Castrilli said in a statement. “Transparency and accountability to the community are our top priorities and part of the culture in Fairfax County.”
The county is streamlining its approach to the roughly 6,000 FOIA requests its 50 agencies receive every year. It will track pending requests to monitor for compliance, use technology that makes email searches easier and regularly remind agency directors they have the discretion to release some information the law considers to be exempt.
Rhyne said she’s happy to see the FOIA process getting more attention. But she said there could be resistance in the state legislature from some lawmakers because the overhaul effort is spearheaded by current or former journalists.
Besides Roem and Hurst — a former television news anchor in Roanoke who plans to introduce a bill that would prevent marketing companies from receiving college students’ cellphone numbers — Del. Mark Levine (D-Alexandria), a radio journalist, co-founded a General Assembly “transparency caucus” in 2016 that also advocates strengthening FOIA.
“My job will be to remind the General Assembly members of all stripes that FOIA is a citizens’ law,” Rhine said. “It’s not just a press law, as some often think.”