Last week, the Richmond Sheriff’s Office responded to a Richmond Times-Dispatch Freedom of Information Act request for payroll records with a well-worn tactic increasingly deployed by government agencies across Virginia: obstruction by charging inflated fees.
The sheriff’s office determined that fulfilling the request would require 20 hours of labor, costing The Times-Dispatch $1,385. In correspondence with reporter Luca Powell, the sheriff’s office explained that one of the employees who would be assigned to the task is paid an hourly rate of $98.46 and would need to spend eight hours collecting the data.
It’s not the most egregious abuse of the open-records law. The Office of Attorney General recently required Virginia’s NAACP chapter to put down a $20,000 deposit after it requested records relating to the recently established election integrity unit. After releasing a tranche of heavily redacted documents in late November, the AG’s office wound up charging the NAACP roughly $9,500, which might seem generous if the initial quote wasn’t so outlandish.
Virginia’s Freedom of Information Act was passed into law in 1968 to guarantee access to public records and meetings of government officials. It’s a critical tool used daily by citizens and journalists to keep tabs on how government operates, and how taxpayer dollars are being spent. But over the last few decades state lawmakers have added countless exemptions to FOIA — some reasonable, some not-so reasonable — based on the idea that publicly releasing some records, such as those pertaining to ongoing investigations or contract negotiations, can at times impede important government work.
Yes, the cost in staff time devoted to FOIA requests is real. And reporters have long had to negotiate and work with government officials to obtain public records. Sometimes, the requests are unwieldy and too broad, and wind up consuming inordinate amounts of staff time and resources. Government agencies are allowed to “make reasonable charges” for supplying public records and are required by law to make “reasonable efforts to supply the requested records at the lowest possible cost.”
But what is reasonable? Is it assigning the work to a sheriff’s office employee who makes $204,000 a year? That’s where FOIA falls short. State law is vague on the topic of reasonableness.
So it turns out to be fairly easy to withhold documents by charging exorbitant fees — or by using the classically vague “working papers” exemption — for a simple reason: The only way to resolve such disputes is by suing the governing body, and settling the matter in court.
Earlier this year, The Times-Dispatch sued the administration of Gov. Glenn Youngkin after it refused to make available public documents regarding the hiring of March Bell, a senior adviser to Virginia Secretary of Public Safety and Homeland Security Bob Mosier, citing the working papers exemption. A Richmond General District Court judge ruled in the RTD’s favor in October. It was a small victory, but one that was only possible because The Times-Dispatch has a vested interest in an open, more transparent government — and the resources to hire an attorney.
Few citizens can afford to plunk down $20,000 for a FOIA request or have access to an attorney specializing in open-records law. Nowadays, the same is true for many news organizations struggling with limited resources. So, as a result, the inquiring citizen or journalist is often left with no choice but to abandon the request.
Still, that’s not the real problem. The abuse of FOIA is symptomatic of something more worrisome: Government officials have increasingly come to the realization that obstructing the public’s business bears almost no consequence. In these days of reality-bending politics, there are no repercussions for denying the public access to public records.
There’s a reason, after all, why the General Assembly has rejected efforts to amend the Freedom of Information Act to make it more accessible. It’s simply not a political priority, says former journalist and current Prince William County Del. Danica Roem, who has introduced legislation that would require public bodies in the state fulfill FOIA requests free of charge, so long as they take no more than two hours of staff time. For those requests that take longer, the bill would limit the hourly rate that public bodies can charge at $33.
Roem has introduced some version of the legislation every year since taking office in 2018. It’s never so much as made it out of committee. After the bill was recommended for approval by the Virginia Freedom of Information Advisory Council, the legislation was tabled again earlier this year and left idling in the House General Laws Committee.
“There are so many stupid things that we fund in the budget rather than transparency and accountability,” says Roem, referencing, for example, recent discussions over public funding for a new stadium for the Washington Commanders. “We at the state government level do not put in the dollars to show that we value transparency as a priority issue for the commonwealth.”
Richmond’s sheriff, Antionette Irving, may not be the worst offender. She may not even be an outlier. There’s a growing corps of government officials who have discovered that it’s easier, and more politically prudent, to use any means necessary to conduct the public’s business in the dark.
FOIA fights aren’t sexy, and they get lost in a crowded media market. But it matters. A growing lack of accountability and transparency breeds corruption and contempt for the democratic process. If a tree falls in an empty forest, does it make sound? One can argue the philosophical points, but if the trees keep falling — eventually there will be no forest.