Even with FOIA, access to records a struggle
Posted to: Joyce Hoffmann Opinion

[/color][/u] Joyce Hoffmann
Virginian-Pilot public editor
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The Virginian-Pilot
© June 29, 2008

If you live in Virginia Beach and want to see the latest fire inspection report at Princess Anne High School, the law says it should be available for the asking. That's also true for e-mail correspondence between members of Norfolk City Council. And the Chesapeake Police Department has a similar legal responsibility to make available its daily crime logs.

Virginia's Freedom of Information Act, in effect since 1968, is unequivocal: Government records belong to the public, and unless an exemption says otherwise, those records are open. Yet, after 40 years, "freedom of information" in the commonwealth, more often than not, is an oxymoron.

Ignorance of the law, a fear of repercussions among public employees, and a mistaken sense that custody of records implies ownership all undermine the law's promise of transparency.

There's a better-than-even chance that government agencies will thwart citizens' requests for access to the vast assortment of public records to which they're entitled. Rude refusals are one tactic. Demands for explanations of the planned use of the information are a common - but proscribed - reply. In spite of the law's "ready access" requirement, foot-dragging is familiar. Some agencies make excessive use of the "working papers" exemption to avoid releasing documents.

Many municipalities appear to pay little heed to the law's five-day response requirement. Increasingly, government agencies demand exorbitant fees, sometimes hundreds of thousands of dollars. In legislative sessions since 9/11, Virginia lawmakers amended the law to include more exemptions.

The real cause for alarm, however, is that despite the troubling patterns documented in access tests by Virginia's newspapers, professionals who track state-by-state compliance with FOIA laws rank Virginia among the more "access friendly" states.

Virginian-Pilot staffers make frequent use of the law on their beats. "It's simple," explains urban enterprise reporter Meghan Hoyer. "The government is doing the work of the people, and the people should know what the government is doing."

The act stipulates that it "shall be liberally construed to promote an increased awareness by all persons of governmental activity." How well a city responds to that directive can differ from department to department. Overall, the five cities in South Hampton Roads receive mixed reviews.

Chesapeake and Norfolk are decidedly "access unfriendly" cities. Excessive delays and outright refusals to provide information are commonplace in Chesapeake. Norfolk is known for its occasional attempts to impose charges far in excess of the actual costs of providing the records.

Chesapeake generally fills requests within the deadline only when the material is easily accessible and uncontroversial. Otherwise, it releases information grudgingly. For example, The Pilot last year filed suit against Chesapeake for refusing to provide documents related to property damage and liability claims against the city. A Chesapeake judge rejected the claim that the files were exempt, ordered the city to release the documents and ruled that its $178 charge for the material was improper.

In Norfolk, when The Pilot last year filed a request for code enforcement data, Section 8 rental inspection reports and complaint calls to police about vacant properties, the city first claimed the information did not exist, then put a $567,000 price tag on it, and finally took six weeks to turn over the material at no charge.

Portsmouth, with some exceptions, notably the Police Department, has a more open FOIA environment than Norfolk or Chesapeake. In response to the identical FOIA requests filed in Norfolk, Portsmouth provided the same information in a reasonable time and without charge.

In Virginia Beach, the appointment five years ago of the state's first local public information specialist has helped to streamline the process. Responses to requests are generally prompt and complete.

Suffolk, where a FOIA coordinator was appointed last year, has since then - with a few notable exceptions - improved access.

Ironically, the press sometimes undermines its own goals. The Roanoke Times last year underscored the need for media organizations to exercise sound judgment when it provided online access to the names and addresses of Virginia's 135,000 gun owners who have concealed weapons permits.

Gun owners were outraged. They believed their privacy had been violated. In response, Sen. Edward Houck this year introduced a bill to prohibit electronic access to gun owner data. The bill was carried over to 2009.

Still, FOIA is an important tool. Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, has a national reputation as a champion of access laws. Without them, she explains, "Citizens have no way to determine whether their tax dollars are being spent wisely, and whether the people they have elected to represent them are acting in their best interests."

Joyce Hoffmann, the public editor, is an associate professor in the English Department at Old Dominion University. Reach her at (757) 446-2475 or public.editor@pilotonline.com.