Readers of this column know that I frequently encourage government officials and employees to adhere to the spirit of the Freedom of Information Act as well as to the letter of it.
I often suggest that records be released even when an exemption could apply. Meetings do not always need to be closed to the public, even if an exemption would allow them to. Implementing stricter and stricter rules for public comment at meetings is allowable under FOIA, but is it wise? Charging for every last penny to provide a requester with records is also OK under the statute, but couldn’t those charges be waived for small numbers of copies or for requests that take a short amount of time to fill?
In some ways you could argue that this IS the letter of the law. Section 2.2-3700(B) says this:
“The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law.”
Granted, that’s a policy statement, but policy statements don’t exist for the heck of it. They serve as guidance for those who use laws. And this policy statement can generally be boiled down to the baseball rule: the tie goes to the public.
But lately I’m reminded of how sometimes members of the public and the news media seem to be looking for a FOIA fight. I get lots of questions asking, “Is this a FOIA violation.” I try to give my fairest assessment of a situation. I do my best to explain what the statute says and why the situation seems to indicate a violation or not.
Often the “Is this a FOIA violation” violation is indeed a violation, in my opinion. The inevitable next question, then, is, “What should I do.”
I usually give a two-pronged answer. I tell them about the statutory enforcement mechanisms (go to court) and the informal resolution methods (call the FOIA Council) and the use-your-resources methods (write letters to the editor, speak out, etc.).
But then I ask them whether they want the records more than they want to stick it to the government. And I can tell from the back and forth I’ve had on this issue over the years that there are plenty of people for whom this is a difficult question.
Because people often find FOIA when they are angry or upset about something the government has done or is proposing to do, they also often take rejection in the FOIA process very personally. It’s just one more example to them of how the government is trying to throw them over.
And so, for these people, if they see a FOIA violation, they want to make hay out of it. And they want to make that hay more than they want the records. They want to stick it to the government who is sticking it to them.
And there are those who practically cackle with glee when the government makes a misstep.
But just as I urge government to go beyond the letter, I urge citizens and media to do the same occasionally, too. FOIA encourages government and the public to work together.
Think about how much more likely and willing a government employee -- who may be overworked, may be up late at night with a sick child, may have an overbearing boss, may have been on vacation for a week and is just catching up, may have misplaced the sticky note with the FOIA request information on the floor -- will be to help in the future if someone cuts him/her a break today over unintentional technical violations.
This is especially true when there’s been a history of cooperation and compliance. And when there’s been no prior history, second chances are welcome.
Now, when the prior history is one of contentiousness, foot-dragging, niggling and obstruction, then it’s probably time to put one’s foot down and demand strict adherence to the law.
No one, however, benefits from turning FOIA into a booby trap for citizens or government. Whenever possible, give each other some slack.
The spirit of the law operates on both sides of the counter.