FREEDOM OF INFORMATION:
VIRGINIA NEEDS AN OMBUDSMAN

Forrest M. "Frosty" Landon

Horror stories about government secrecy are almost as pervasive as government itself.

So it will strike some people as unthinkable that somebody within government ever could be trusted to curb excessive secrecy. Yet, increasingly, so-called "sunshine offices" are being established to help enforce both state and federal Freedom of Information (FOI) laws. Some, especially at the federal level, exist within large agencies to help facilitate day-to-day requests for access to public documents. But in a growing number of states, independent FOI offices also have been set up to oversee open-record laws and, increasingly, open-meeting rules.

Virginia, for the first time, is considering just such an office. Barring the unexpected, backing is expected from a special legislative study commission later this year. The next General Assembly thus will tackle the proposal as one of its first major actions in the new millennium.

With the right rules in the law books and an impartial, authoritative public servant placed at the helm, benefits of such an office would be immeasurable. For at least a generation, FOI laws have been in place to try to limit government secrecy. In Virginia, a Freedom of Information Act was first enacted in 1968. The act has just undergone a sweeping revision--and, as in at least three previous rewrites, nearly all of the changes were designed to put further limits on excessive secrecy and to discourage petty, complicated obstacles to access that citizens frequently encounter.

Thanks to unanimous backing by the 1999 General Assembly and a hard-fought compromise with the various FOIA interest groups (primarily media, police, and local-government lobbyists), the study commission managed to tighten a few loopholes, mostly dealing with broad, discretionary exemptions involving local real-estate discussions, a chief executive's working papers, and a government lawyer's job description. It also eliminated a lot of ambiguous language that invited varying interpretation, and it stiffened fines that public officials must pay from their own pockets if they deliberately violate open-government rules. For the first time, the burden also was placed squarely on government to prove to a court's satisfaction that it had a legal right to close a disputed meeting or withhold data.

Information policy is not simple, as the bipartisan study commission often found in the first year of its work. Everybody freely acknowledges that in a self-governing society, a government must be accessible and fully accountable; the devil, as always, is in the details: Which information, if any, should remain secret? And, if not forever, for how long?

The public's rising expectations for open-door government date back at least to the McCarthy era, Vietnam, and Watergate. But there has been a growing realization--heightened by abuses in the age of the computer--that we must not needlessly intrude into the citizen's zone of personal privacy. Or, as cynics might assert, at least what little privacy any of us can still claim in this age of big government, big business, and ever-bigger computer databases easily manipulated to share data in dangerous ways, revealing more about us than perhaps we ourselves know.

But whatever the disagreements over just how much privacy anybody reasonably can expect, we ought to know exactly what information a government entity gathers about each of us. Is it information a government must have simply to function? If so, is it accurate? Is it carefully safeguarded against unauthorized disclosure? And if an obvious harm might result from full disclosure, can we find ways to prevent that harm while still maintaining the open-door rules required of an open society?

Whether new laws are to be enacted or old ones tossed, a citizen's "right to know" must be zealously protected. Only then can we restore public confidence in governmental institutions; only then can we lessen voter apathy that so haunts us now. Each of us must have a say--or at least the right to have a say--in how government spends tax dollars; what kids or grandkids are taught in school; how colleges and universities serve our larger society; and how well the courts, the law enforcement agencies, and, yes, even the sewer and water departments function.

With a "sunshine office" in place, difficult right-to-know issues could be carefully thought through and properly balanced. As circumstances changed and as new technologies continued to develop, sensible information policies could be formed, not merely in reactive fashion, as so often is now the case, but in anticipating the extraordinary new challenges that will face us in the age of digital information.

Wisely, at least a half-dozen states--Indiana most recently--have established open-government offices to wrestle with information policy. No two approaches are exactly alike, but the primary role is always the same: to guide development of access law and to serve as a Freedom of Information interpreter, mediator, and trainer. Whatever the agency's name (and no two names are identical), it provides a non-judicial dispute-resolution process to handle any access question that pops up--at the state university or the county courthouse, in the governor's office or the office of the football coach. In the long run, all agree, these programs solve problems that courts simply cannot, and they save tax dollars, too.

The Virginia Coalition for Open Government strongly supports creation of an independent FOI office in the commonwealth, based in the legislature's administrative offices, where, thanks to a cadre of professionals committed to public service and the emergence of a strong two-party system, open government has emerged as good politics as well as good policy. The small agency would issue advisory FOIA opinions, oral and written, building on an already existing body of settled law. At present, some government officials can obtain FOI opinions by going to the Office of the Attorney General; everybody else must go to court for FOI guidance (in a number of states, it is the attorney general who serves as FOIA ombudsman). The attorney general's office generally tries to be apolitical in interpreting Virginia's FOIA, but it represents state agencies on all FOIA matters and thus cannot fully avoid an appearance of conflict. With an FOI office, private citizens and government officials alike could get questions answered immediately. New opinions, when needed, would be written quickly by a specialist in access law, a person of proven integrity who should be insulated from day-to-day political pressures.

As always, litigation would remain an option. But, as has happened elsewhere, a judge in most cases likely would defer to interpretations by the FOIA office, acknowledged or not. Most judges are not familiar with the complexities of access law. They do not like to be bothered with cases that immediately must go to the top of their dockets. Little wonder, then, that some court opinions in the past gave the benefit of the doubt to government officials intent on keeping things secret.

Because the state's FOIA was extensively rewritten in 1999, more than 1,100 Virginiansmost of them government officialshave just undergone formal FOI training. Seven FOI seminars, held throughout the state, were co-sponsored by local government associations, media groups, the Virginia Bar Association, the Virginia Coalition for Open Government, the Office of the Attorney General, and others. Countless officials are getting a needed dose of FOI training at meetings of their state associations or from their own staff attorneys. Primary credit for this training effort goes to Delegate Clifton A. "Chip" Woodrum (D-Roanoke) and the other members of his study commission: Senator Bill Bolling (R-Hanover); Senator R. Edward Houck (D-Spotsylvania); Delegate Barnie K. Day (D-Patrick); Delegate Joe T. May (R-Loudoun); Roger Wiley, who represents local government; and Smithfield publisher John Edwards, who represents the media.

While no one is exactly sure what the new FOI law means when it requires elected and appointed public officials to "familiarize" themselves with its provisions, attendance at a training workshop obviously helps. But FOI training should not be a one-time, once-a-decade occurrence. FOIA training sessions also were held statewide in 1989-90. After 1990, they stopped. In 1989-93, the Office of the Attorney General produced plain-English guidelines for FOIA compliance. In 1993, that updating stopped. An FOI office could remedy that.

Virginians might not always like the answers they would get from an FOI office. But they would get that answer fast. And, with a strong legislative mandate for more openness, they would get it from someone who understood what open-government rules were all about.

    Additional information on the Freedom of Information Act is available from the Weldon Cooper Center for Public Service. For a copy of Local Government Official's Guide to the Virginia Freedom of Information Act by Roger C. Wiley, call the center at 804/982-5704 or send an e-mail message to cps-pubs@virginia.edu. The 36-page guide costs $5 plus sales tax.


The following six states offer comprehensive FOI programs, each unique in both structure and mission, to deal with day-to-day FOI problems.

CONNECTICUT--Its five-member Freedom of Information Commission is a quasi-judicial entity that holds hearings on citizen complaints, mediates disputes, issues binding opinions, and publishes a citizen's FOI guide. Established in 1975, the agency has 15 employees and a budget exceeding $1 million. Mitchell W. Pearlman serves as chief counsel and executive director. The commission's mission is to ensure that the people of Connecticut have access to records and meetings of public agencies and that public agencies comply fully with the Freedom of Information Act. Critics say that this commission approach would only delay access and would be way too costly if attempted in larger states. Its website address is www.state.ct.us/foi.

HAWAII--The Office of Information Practices was established in 1988 to hand down advisory opinions to private citizens, media, and government officials. Initially it dealt only with government records; oversight of public meetings was added last year when the office temporarily was assigned to the lieutenant governor (previously, it reported to the attorney general). The executive director is Moya T. Davenport Gray. Her office has authority to waive, as well as to set, permissible fees for record searches; can investigate policies and procedures of any public agency; and can recommend disciplinary actions against any public official. Critics say the agency's ambitious mission was never fully implemented, and it got bogged down in politics and its own bureaucracy. Budgets were reduced, staffing was cut from eight full-time positions to three, and Gray has warned of a further backlog in its work. It has a website at www.state.hi.us/oip.

Its opinions are posted at the state bar association's website: www.hsba.org/Hawaii/Admin/Info/infoindex.htm#1999.

INDIANA--An office of Public Access Counselor, created by a governor's executive order in June 1998, was made permanent by the state legislature just a few months ago. Anne Mullin O'Connor, a former deputy attorney general, was appointed counselor by Governor Frank O'Bannon. During her four-year term she can be removed only for cause. She has a part-time assistant and a budget under $150,000. Written FOI opinions may be sought by members of the public, representatives of the media, and government officials and their employees, so long as there is no pending administrative or judicial proceeding on the same issue. Written opinions must be issued within seven days in high-priority cases and within 30 days otherwise. In its first year of operations, the office has written 17 opinions and fielded more than 1,000 inquiries and complaints (about 25 percent dealt with meetings, the rest with records; 55 percent came from the general public, 28 percent from government, the rest from media). The counselor must be a lawyer. She is required to recommend ways for the legislature to improve public access; she also oversees training for government officials and the general public. Her opinions are posted at the PAC's website: www.state.in.us/pac.

MASSACHUSETTS--The Division of Public Records, which exists in the Office of the Secretary of the Commonwealth, provides an appeal process for any citizen denied access to a government record. Once an administrative appeal is heard, the Supervisor of Public Records may order a record custodian to release the requested record if it is determined to contain public information. The office has placed online a number of regulations covering creation, storage, management, and disposition of records, spelling out the citizen's rights of access and the custodian's open-government duties. The division's website is http://www.state.ma.us/sec/pre/preidx.htm.

MINNESOTA--Government units or individuals seeking resolution of disputes relating to the state's public records act may request an advisory opinion from the Commissioner of Administration. In a political standoff a few years ago, the attorney general retained authority to issue opinions to government agencies. In any legal clash, the attorney general's opinions take precedence over those of the commissioner. The commissioner's opinions are written by his Information Policy Analysis Division, directed by Don Gemberling. Absent an attorney general opinion, a court must give deference to Gemberling's opinions in any proceeding that involves a disputed record. When governmental officials or public bodies comply with that opinion, they no longer face fines and are not compelled to pay attorney fees when sued. Inquiries range from 7,000 to 8,000 each year. Of the division's 54 written opinions last year, 30 were sought by private citizens, 17 by government agencies, and 7 by media. The commission's website is www.state.mn.us/ebranch/admin/ipo/pipa/about.html.

NEW YORK--Established in 1974, the office of the Committee on Open Government has issued hundreds of written, non-binding opinions. Each year it answers thousands of questions dealing with state laws that cover records, meetings, and privacy. An 11-member committee has an advisory role in overseeing the office and suggests long-term policy initiatives to the state legislature. Day-to-day operations are directed by Robert J. Freeman, the committee's first and only executive director (although Freeman is technically a political appointee, he has managed to stay insulated from partisan politics). The office is under the secretary of state and has a budget under $200,000. Freeman's written opinions are posted at the committee's website: www.dos.state.ny.us/coog/coogwww.html


Forrest M. "Frosty" Landon is the executive director and a founder of the Virginia Coalition for Open Government, a nonprofit, nonpartisan organization that opposes excessive secrecy in Virginia government. He is also the president of the National Freedom of Information Coalition, whose members include FOI groups in 35 other states; a member of the Virginia Press Association's FOI Committee; a former president of VPA; and a former chair of the FOI Committee of the American Society of Newspaper Editors. He retired in 1995 as executive editor/vice president of The Roanoke Times and was inducted into the Virginia Communications Hall of Fame in 1997. He is the recipient of the George Mason Award for outstanding contributions to Virginia journalism and the national Freedom of Information Award, both from the Society of Professional Journalists.

FALL 99 VIA