This is Sunshine Week across the country and it’s a good time to take stock of where our “right to know” about government stands.

Many of us have the impression that our right to know the workings of government is framed in constitutional law. Unfortunately, it isn’t. Neither the U.S. Constitution nor many state constitutions specifically provide citizens with the right to monitor government.

Historically it’s a simple fact that governments have often used secrecy — occasionally wisely, often maliciously, but, almost always, politically.

Our “right to know” what government is doing came about during the mid-20th century and was spawned by the public’s built-up disgust for governmental decisions that had been made in secret.

What became known generally as the “sunshine movement” produced open meetings and open records laws across the nation and, like many significant social movements, it was a product of the 1960s.

The U.S. Congress enacted the federal Freedom of Information Act in 1966. Virginia enacted a state law covering both meetings and public records in 1968, and by 1976 all 50 states had enacted some form of open government legislation.

Some states, including Florida, amended their constitutions to include language protecting the public’s right to know. Virginia has not.

You would think that all those laws should have essentially brought an end to governmental secrecy, but as any observer of the Isle of Wight or Surry’s Board of Supervisors or local town councils knows, it’s just not so. Elected officials still cherish secrecy and often seem inclined to use the slenderest of threads to go behind closed doors.

Public officials would like to have you believe that a closed session “must” be held for a whole laundry list of exemptions that are provided in the Freedom of Information Act. They would also have you believe that they cannot provide a document that carries a FOIA exemption. 

In neither instance is that true. There are a few items that cannot be disclosed because of a specific provision of Virginia law, most aimed at protecting privacy, some to protect against possible terrorism, and a few others, but the vast majority of closed sessions and sealed documents are totally discretionary. Documents “may” be withheld, meetings “may” be closed, but it’s absolutely not mandatory. It’s simply the choice being made by your elected and appointed officials.

The law restricts elected and appointed public bodies even further. It specifies that when they go into a closed session, each of them is legally required to monitor that session for violations. If any or all of the group steps beyond what a participating individual thinks is allowed by FOIA, he or she is legally required to say so in public, and spell out the violation that individual feels has occurred. And they don’t have to be a lawyer or listen to the group’s lawyer. They just have to use their own judgment.

Ultimately, though, it’s the general public who must protect its rights under FOIA. If you have tried unsuccessfully to obtain what you believe is a public document, there are resources available to you.

An important one is the Freedom of Information Advisory Council, which was created by the General Assembly in 2000. It’s a governmental office located within the Division of Legislative Services in Richmond. Council staff can give you informal advice on whether a document or meeting is exempt under FOIA. They’re objective and their only aim is to educate Virginians on the intricacies of the law.

There is also a citizen advocacy organization known as the Virginia Coalition for Open Government. It’s older than the Advisory Council, having been created in 1996, and it deserves your support.

The coalition came about because those of us in the newspaper business were tired of being told by state legislators that the Freedom of Information Act was a “press” law that most Virginians didn’t care about. We knew the law directly affected all Virginians and set out to prove it.

I was asked to chair a committee back then that included newspaper as well as broadcast journalists from across the state as well as academics and citizen advocates. With support from a broad spectrum of donors, and even with the advice of two former governors — Linwood Holton and Gerald Baliles — we were able to form what became VCOG. 

A couple of years later, it was VCOG that provided the strongest voice in favor of creating the Freedom of Information Advisory Council, and was largely responsible for seeing it become a reality.

Today, the VCOG board includes active and retired journalists (Steve Stewart from this paper is one), governmental agencies, local government officials, the Virginia Poverty Law Center and the Virginia Center for Investigative Journalism.

It’s probably a safe bet that the members of a board that broad don’t always agree on specific issues that come up, but they’re all committed to the broad principle of providing maximum access of governmental functions to the public.

Megan Rhyne is the coalition’s longtime executive director and spokesman, and provides a voice for all Virginians who favor access whenever FOIA legislation is being debated in the General Assembly.

Contact information for both the Advisory Council and VCOG can be found online.

 

John Edwards is publisher emeritus of The Smithfield Times. His email address is j.branchedwards@gmail.com.