The Sept. 24 editorial “Behind closed doors,” about the Virginia Supreme Court’s recent Freedom of Information Act decision, overlooked the General Assembly’s role in the debacle. The editorial criticized the court for ruling that public bodies can withhold an entire document when only part of it contains information exempt from mandatory disclosure. A 1,000-page document with a single line of exempt information can be entirely withheld. The majority opinion noted a narrow exception to this rule, where redaction is required, and the minority opinion wanted a slightly larger exception. Redaction-and-release, however, is not the norm.
The General Assembly deserves most of the blame. Virginia’s FOIA once required redaction as the norm. This mandate changed in 1999, perhaps through carelessness. The change was a small one by linguistic standards, but Virginia’s FOIA now says, “When a portion of a requested record is withheld, the public body may delete or excise only that portion of the record to which an exemption applies and shall release the remainder of the record.” The language does not demand redaction. It is conditional. It is circular. It says when a portion of the document is withheld, the public body may use redaction. To a lawyer, this means, “When public bodies choose to redact, they may redact.”
The solution is to change the law to mandate redaction again.
Andrew T. Bodoh, Fredericksburg