Let the sun shine in
Published 4:39 pm Tuesday, March 12, 2019
This is Sunshine Week, when the value of transparent government is celebrated — or wished for — each year.
It’s been the better part of 35 years since I first became involved with the Virginia Press Association’s efforts to coax — and sometimes drag — government into the sunshine.
I have had the opportunity during those years to observe the efforts of citizens, journalists and government officials as they wrestled with the proper balance of openness and secrecy in the workings of local and state government.
Virginia’s Freedom of Information law is not the best in the country, but it is far from the worst. Critics point out that there are well over 100 exemptions to the public records section of FOIA that allow records to be kept secret, and better than three dozen reasons that a public body can meet and talk in private. And more are added each year.
That’s by design, however, and the number of exemptions is arguably one of the law’s strengths. That’s because there are two basic ways of creating exemptions. One is to write broad, general exemptions that cover a multitude of documents or meetings. The other is to write exemptions narrowly to fit a specific set of circumstances. That’s been the Virginia approach, and I hope it doesn’t change.
Virginia’s FOIA has undergone three major rewrites and one less far-reaching one since it was adopted in 1968. I had the opportunity to serve on the panels that rewrote it in 1989 and 1999, and both times, public access was strengthened. A more recent review of the law made some relatively minor “tweaks” to the statute, but no major changes.
Two factors have led to new access challenges, and they are threatening the premise that governmental openness should be the norm. The first is identity theft and a growing perception by Americans that their privacy is being invaded. People are striking out at government, trying to have records sealed that have been public, literally, for centuries. But their efforts do little to protect against identity theft. National data on identity theft is clear. Our use of credit cards and the Internet, and the data that companies collect from these sources are the most prevalent source of identity theft. The instances where information was taken from public records and used inappropriately represent only a few percent of the identity theft cases each year.
The key to protecting ourselves from intrusive government is to prevent government from collecting personal information in the first place, and access advocates, including the press association, are strong proponents of doing just that.
Sealing public records, on the other hand, poses huge problems for individuals and businesses that have a legitimate interest in those records. Every sealed record is one more opportunity for governmental mischief. And somebody, somewhere, will use that opportunity.
It has not been more than 17 years since the terrorist attacks of Sept. 11, 2001 frightened Americans, and some governmental officials at both the federal and state level continue working very hard ever since to see that they remain frightened. During this nearly two-decade period, government has shown itself quite willing to trade human rights for investigative ease in searching for terrorist activity, and Americans, to our discredit, have shown ourselves willing to play along.
In Virginia, agency after agency has secured exemptions to the Freedom of Information Act in the name of homeland security. Some of the precautions are legitimate. Others merely shield government from the prying eyes of the governed.
One of my favorite quotes from the age of the Founders comes from Benjamin Franklin: “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.”
Mr. Franklin was right when he penned the words 250 years ago, and his thoughts speak as clearly to America today.