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Because an email went to spam, a lawmaker wants all FOIA requests made by certified mail

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Del. Paul Krizek, D-Fairfax, who proposed that all FOIA requests be sent by certified mail, withdrew his bill.

A citizen emailed a FOIA request to a state lawmaker and it went into spam. That prompted the lawmaker to file a bill that would require all public records requests in Virginia to be made by certified mail.

Open government advocates said the bill by Del. Paul Krizek, D-Fairfax, would create barriers to citizens who want to make FOIA requests, would hinder government agencies like Fairfax County or Virginia State Police who handle FOIA requests digitally, and would be “horrendous” for reporters.

Under the bill, anyone requesting records would need to do so by mail at the post office and use certified mail or a first-class tracking method. Certified mail costs $3.75.

Betsy Edwards, executive director of the Virginia Press Association, said she was stunned that such an idea would appear in the year 2022. In the 1980s, she was a public information officer for the Department of Motor Vehicles and even then the public asked for records by phone, not by mail.

“I don’t understand this,” Edwards said.

The press association will lobby against the bill.

Asked about his bill on Wednesday, Krizek said he hopes it will start a dialogue and he’s open to amending it.

“I saw a problem that needed fixing. I don’t check my spam filters every five days, and you have five days” to respond to a FOIA request, he said.

In the situation that happened, he said, the citizen sent another email. And when Krizek realized the FOIA request had gone into his spam folder, he notified the citizen and provided records.

“It was fortuitous that I looked in the spam filter. I don’t often do that. I don’t do it every five days, that’s for sure.” But he added, “Now I do.”

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Problem solved, right?

Not for Krizek. He said he drafted the bill because certified mail “is what’s used in the legal world.”

“It could be a certified email, if there’s such a thing. I don’t know,” he said of a way to potentially amend his bill.

Megan Rhyne, executive director of the Virginia Coalition for Open Government, said the legislation would upend many FOIA processes used by government. Citizens often make FOIA requests by email, and requests are handled digitally. The public can make FOIA requests in writing, over the phone or in person.

The bill “would be a cost and a hindrance to citizens, many of whom can’t afford FOIA requests because of the high fees already, and also they sometimes are working full time and can’t get to a post office on their time off to go file a FOIA request,” she said. “It would be narrowing the options down instead of expanding access.”

For journalists, who regularly email government officials asking for records used in reporting, “it would just be horrendous,” Rhyne said.

Requiring journalists to go to the post office every time they request records “would be a slow down on their ability to do their job.”

Rhyne said that in 20 years, she’s never heard anyone complain that a FOIA request went into spam.

“When people do contact me to say that they haven’t received a response, my advice is always to go back and ask again just in case something happened,” she said.

That happened to her once. She filed a FOIA request to the city of Williamsburg, and the city had changed its email settings and the request went to the wrong person.

Rhyne called the city. Problem solved.

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