Column – 55 years on, Virginia’s sunshine law still serving citizenry
Published 4:58 pm Tuesday, January 3, 2023
Our right as citizens to observe the workings of government at all levels is a vital part of democracy. The legal right to know what government is doing, however, is a relatively new concept and is not enshrined in the U.S. or most state constitutions.
In truth, governmental secrecy at all levels has historically been more normal than not.
The demand of people for information about government was heightened during the period of the Industrial Revolution, which brought changes well beyond factory assembly lines. During that period, public schools became prominent features in communities across the nation, increasing literacy and, with it, the ability of people to follow what was happening around them. At the same time, government was growing at all levels. As it did, people demanded to know more about its workings.
This was particularly true in localities, where governing bodies of towns, cities and counties, as well as the increasingly important local school boards, were conducting public business in private whenever they chose to.
Though Utah had enacted an open government law in 1898, only two years after becoming a state, other states were slow to do the same. It would be the late 1960s before public pressure began to affect legislatures across the country. Suddenly there was a virtual avalanche of bills loosely called “sunshine laws,” based on the often-repeated quote by Justice Louis Brandeis that “sunshine is said to be the best of disinfectants.”
Florida was a leader in the 1960s movement, adopting a Sunshine Law in 1967.
The Virginia General Assembly stepped up in 1968 and enacted the Virginia Freedom of Information Act. While some states were writing separate laws governing meetings and records, Virginia’s FOIA combined the rules governing access to both meetings and records in one all-encompassing law.
Then came Watergate and the revelation of national secrecy at its worst. That scandal led to adoption of a national access law, known as the Government in the Sunshine Act of 1976. It controls access to federal records.
While the Virginia Freedom of Information Act is now 55 years old, it hasn’t grown stale. Quite the contrary. FOIA undergoes change just about annually, sometimes increasing governmental transparency, but all too often limiting it. A rough count would indicate that the document, which now is 71 pages long, has been amended approximately 800 times, the majority of those amendments during the past two decades.
In all fairness, when a law is amended, the language of several other sections is often affected, and those must be tweaked as well to match the underlying change, so there have been fewer changes of policy than the raw number would imply. Still, substantive changes to FOIA would number in the hundreds, and there will certainly be more in this, its 55th year.
Politicians love to say that FOIA was written for “the press” or, in the favored pejorative among today’s politicos, “the media.” Well, you can safely count that allegation among the great pieces of political misinformation concocted during the past half century, for if ever there was a law written for citizens, it’s FOIA, and that’s a provable statement.
The Virginia Freedom of Information Advisory Council, which was created in 2000, is charged with providing advice to any Virginian who may have questions about the workings of FOIA. The council’s staff keeps meticulous records of inquiries and requests for opinions, which can be formal or informal. During the 10-year period from 2009 through 2019, news organizations accounted for only 5% of the opinions issued by the FOIA Council. Citizens from across Virginia requested 33% of those opinions. Well over half — 61% — went to governmental agencies.
In addition to opinions, the FOIA Council each year conducts seminars, usually at the request of local governing bodies or state agencies. Those sessions generally are aimed at training government employees who must handle FOIA requests.
The law is far from perfect, and never will be. Some government officials will always insist that an exemption that “allows” a board of supervisors to meet in private actually demands that it do so. Officials will also say that records the government “may” withhold from public scrutiny actually “must be” kept secret.
In short, there will always be efforts by government to control the information it holds. I suspect that governmental inquiries to the FOIA Council are often prefaced with something akin to, “Do I have to give them this?” That may seem a bit cynical, but I’m confident it’s also accurate. I say that because if a government official or agency wanted to give up the information that was being requested, it would do so and wouldn’t need an opinion from anyone.
At age 55, FOIA remains a work in progress. Fortunately, there are people who monitor the statute and efforts to weaken it. They are most ably represented by the Virginia Coalition for Open Government (VCOG), which was founded a short time before the Advisory Council was created. In fact, VCOG was among the leading advocates of the council’s creation.
If you’ve ever tried to obtain information from a governmental agency and run into difficulties, you might want to learn more about VCOG. You can do so by taking a look at its website at https://www.opengovva.org/.
John Edwards is publisher emeritus of The Smithfield Times. His email address is email@example.com.