Why not record closed meetings?

Published 8:02 pm Tuesday, August 25, 2015

The Virginia Freedom of Information Advisory Council, which is charged with helping state and local officials as well as the general public navigate the provisions of Virginia’s sunshine law, is in the midst of dissecting the statute.

Separate subcommittees of the Council have been named to review the law’s provisions concerning public records and public meetings. The study has been underway for two years and is due to wind down this fall. When it ends, the full FOIA Council is expected to review the work of the subcommittees and develop a package of legislative proposals that in turn may be presented in the next General Assembly session.

In the end, some of the more than 100 document and meeting exemptions in FOIA will be tweaked a bit to fine tune and hopefully tighten the circumstances under which secrecy is allowed. But nothing terribly dramatic appears to be on the horizon as a result of this study.

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I proposed, during the meeting of the Meeting Subcommittee last week, that FOIA be amended to require that all closed meetings of public bodies be recorded. I further suggested that the recordings be sealed and not made public even by the body that created them.

The proposal would break new ground while not radically changing the fundamentals of the existing law.

The recordings could only be opened by a judge presiding over a suit that grew out of a closed meeting, and only then if the judge thought the suit had merit and that the recordings might thus provide evidence pertinent to the allegations.

The presiding judge would then be allowed to listen to the tape in camera (privately) to make a determination whether FOIA might have been violated. Then, and only then, could the judge decide whether to unseal the recording and make it part of the court record.

Because of the criticism that I know will be leveled by local government toward this idea, I also suggested that the amendment have a “sunset” provision of two to three years. That would mean the concept would automatically die if not reintroduced before the sunset clause killed it.

The idea is not to provide evidence for lawsuits, though it would certainly do that. Rather, the idea is simply to dampen the enthusiasm that some public bodies (and their attorneys) have for discussing policy matters in private. A lot of public policy is still being decided in private despite FOIA’s clear intent to prevent that from happening.

It is my firmly held belief, after watching FOIA both as a journalist and as a member of the FOIA Council and two legislative study committees during the past three decades, that the meeting exemptions in FOIA are not the problem. The problem is that some public officials and some attorneys loosely interpret the exemptions that allow private discussions.

And that’s not what FOIA demands. The statute’s clearly stated policy is that:

“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…”

Will the suggestion be seriously considered? There will certainly be a bit of panic in the trenches among some local public bodies that enjoy a rather loose interpretation of the provisions that govern closed meetings and local government does have significant clout in Richmond.

Still, I think this is a concept worth trying. I am firmly convinced that it would eliminate much of the wrangling over what is discussed in back rooms across Virginia.