By Abby Rogers

Virginia Statehouse News

It’s Sunshine Week in Virginia, and it has nothing to do with the coming of Spring.

It’s a week dedicated to examining to transparency in government. So, are state and local governments living up to the expectations of openness and transparency?

Virginia’s Freedom of Information Act guarantees Commonwealth residents access to public records and entrance to public meetings.

“The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government,” the act states.

The act does allow for government employees to provide exemptions to the information it releases, but the exemptions must be “narrowly construed,” and exemptions aren’t meant to discourage residents from seeking information from the government.

While it might strive for openness, Virginia’s law doesn’t have enough “teeth,” Winchester Star Managing Editor Maria Hileman said.

“But I don’t think Virginia’s law is strong enough,” she said.

Hileman worked in Connecticut, one of the first states to have an open records law, for more than 20 years. In Connecticut, residents who were denied requested records can file a grievance with the Connecticut Freedom of Information Commission. If the commission decided there was merit to the claim, it holds a hearing where both the resident and the government agency can state their case. The commission can then force the agency to give up the record, as well as possibly fine the agency, if it decided there was merit to the resident’s claim.

“So there’s actual teeth in the law,” Hileman said about Connecticut’s FOIA.

Virginia does have the Virginia Freedom of Information Advisory Council, which helps resolve FOIA disputes. According to the council’s Web site, it answers questions about access to public meetings and records and issues advisory opinions. But it doesn’t have the authority to mediate disagreements.

“They’ve been very helpful to us,” Hileman said about the council. “I have nothing negative to say about them.”

The council will issue opinions about the newspaper’s FOIA requests that it can print if a government agency won’t release a document. However, if that government agency still refuses to bend, the only recourse is a lawsuit, which just ties up the court system, she said.

Most Virginia residents seem to be in favor of the state’s attempts at openness within the government.

“They give definite guidelines to government agencies and all public bodies as to which information is require to be open,” said Ginger Stanley, executive director of the Virginia Press Association.

While the law gives officials some options to close meetings or seal records, it is not required.

“It states very clearly that openness is the goal,” Stanley said.

And attempting to thwart that openness can come back to bite government officials. If someone brings a FOIA case against a government official to court and wins, that person can collect court costs, which is a plus for Virginia’s law and not something all other states have, she said.

Stanley also applauded the fines assessed against a government official who knowingly violates the FOIA law, something addressed by the General Assembly this session.

Delegate Robert Marshall, R-Manassas, sponsored legislation that would double the fines people would pay for willingly and knowingly violating FOIA. If Gov. Bob McDonnell signs the legislation, the fines will range from $500 to $5,000, depending on the violation — a development Stanley called “significant.”

Richmond-based lawyer Roger Wiley said based on his knowledge, Virginia’s law is “probably among the better ones.” It allows residents to get both documents and attend meetings, while other laws — such as the federal FOIA — only covers records, not meetings, he said. Wiley advises local government about FOIA issues and is currently serving his second term on the Virginia Freedom of Information Advisory Council.

While she agrees that Virginia’s FOIA law has a “fairly good reputation,” Megan Rhyne, executive director for the Virginia Coalition for Open Government, said the law could use some improvements.

Rhyne said she’d like to see the provisions for assessing fees be a little clearer. The act states that all public bodies and government officials are required to make “reasonable efforts” to reach an agreement about the production of requested records, and the government can charge for the actual costs of reproducing the records. But the actual costs can “vary wildly,” based on the agency that’s reproducing the record and where it’s being reproduced, Rhyne said.

Rhyne said she’d also like there to be a little more guidance about when e-mail conversations can be considered more of an exchange of letters. A subsection of the law prohibits most government agencies from meeting electronically. However, it doesn’t mention government electronic communication not done in a meeting.

“Papers should be going after e-mail,” Hileman said, adding that public official don’t realize e-mail is part of the public domain.

Virginia’s FOIA is only as good as those who practice it, something that varies from department to department and locality to locality, Rhyne said. It’s a sentiment echoed by others.

While he said Virginia’s law is a “pretty good one,” Wiley said compliance varies widely from department to department. However, Wiley said he wouldn’t say which departments were better at following the law,because that would imply others weren’t as good.

Virginia’s law is pretty standard but it’s open to interpretation. The coalition’s job is to educate officials and residents about the law so they know how to interpret it, Rhyne said.

“There are people out there who want to know more, who want to do the right thing,” she said. “There are lots of them out there.”

The Virginia Coalition for Open Government hosts annual conferences about government issues and transparency. Its members are also available to speak to groups about FOIA.

“There are resources there,” Rhyne said. “It’s just a matter of getting folks to make that call.”