Examining how open government really is
Published 1:20 pm Wednesday, February 15, 2017
All citizens of Virginia, whether they realize it or not, have an important ally that has been written into law. It is a valuable tool, ensuring they have the ability to observe how they are being governed, and it is a hallmark of the free society that exists in the United States of America.
This ally, tool and hallmark is called the Virginia Freedom of Information Act (FOIA).
Virginia FOIA’s policy states that “by enacting this chapter, the General Assembly ensures the people of the commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted.”
For citizens of Lunenburg, public bodies include their county government and board of supervisors.
The policy of FOIA underscores the importance of transparency and openness when it comes to how these public bodies operate.
“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,” FOIA states.
Public bodies have five work days to respond to a request for public records. If they respond within this time period noting that it is not practically possible to provide the requested records or to determine their availability in the allotted time, they can have a seven-work-day extension.
Alan Gernhardt, senior attorney with the Virginia Freedom of Information Advisory Council, gave an example to help illustrate how FOIA itself is the default set of rules for getting copies of government records, and it applies in more situations than many might understand.
“People never think about it this way, really, but when you go to (the Department of Motor Vehicles) and say, … ‘Can I have the form for that please?’ They hand you the form — nobody thinks FOIA, nobody worries about a five-day response, but those things are absolutely public records,” he said. “They are a record produced by a government agency in the transaction of public business.”
FOIA does grant exemptions that a public body or its officers or employees can exercise to make a meeting closed or to withhold records.
To give some perspective on the openness of Lunenburg County’s government, The Dispatch posed a set of questions to it and later submitted a FOIA request. What follows is a summary of their responses to the set of questions.
The county gave many specific answers and a few estimates.
The county said it received less than six FOIA requests in 2016, and only one of them was denied, as it was an out-of-state request. The topic of the most frequently requested records pertained to personnel information, requested from a former employee.
In responding to the question of whether the county always uses exemptions that apply to a record or meeting or if it sometimes releases information or holds open meetings when it doesn’t have to, the county said, “We follow the exemptions set forth by the Code of Virginia.”
As for the common exemptions the county uses when it is asked for records, Lunenburg County Administrator Tracy M. Gee said, “I’ve only had to deny requests to out-of-state requestors.”
The county said that on average, it responded to FOIA requests in 5-10 working days in 2016. It extended the five-work-day response time three times due to the volume of information requested and the time necessary to compile it.
“There are only three of us in this office, and it also depends on work schedules, deadlines for county matters and unexpected circumstances,” Gee said.
The county does not always charge for requested records. For example, it does not in instances in which billable costs are less than $10.
The county’s fee structure guidance document states the county is entitled to charge a fee to recover the costs of document search and duplication, and requests requiring more than one hour will be charged based on average current salary rates (including benefits) of the personnel performing the search.The county also has a fee waiver.
Referring to The Dispatch’s set of questions, Gee said, “This request for information is technically subject to FOIA, but I am waiving the formality for this first response.”
The county stated that in 2016, the maximum charge it applied to a FOIA request was less than $100, and the minimum charge applied was $0.
The county said it replies to out-of-state FOIA requests with a note stating it is not obligated to reply, in accordance with the Code of Virginia.
When it comes to regularly-held board meetings, the county said, on average, it makes the agendas available one week or more before the meeting, and it makes the board packets available about one week before the meeting.
The county said the agendas go for public view before the governing body receives them, and the packets are available by special request the same time they are made available to the governing body.
The county noted the board cites the subject of the closed session of which it is entering. An inspection of the 2016 minutes shows that in most cases, only formal wording from code sections is used to indicate the subject, though. The topics included those referred to in Code of Virginia 2.2-3711 sections A1, A3, A4, A5, A6, A7 and A29. The most frequent closed session exemption used by the board in 2016 was referred to in A7, which concerns legals matters and consultation with legal counsel.
When asked if the county and/or board of supervisors was sued under FOIA in 2016, the county said, “Not exclusively.”
“While we are not being sued exclusively under FOIA,” Gee said, “a former employee made claims against me, another employee and the county in a lawsuit regarding his personnel file (which is protected information) he requested according to FOIA.”
When asked how it goes above and beyond responding to FOIA requests and making documents and information available to the public, the county said, “All minutes are posted immediately upon approval by the board, our budget is online, notices of meetings go on our website, Facebook page and two local newspapers. We strive for transparency to avoid the need for FOIA requests.”
To test how Lunenburg County’s government fares when it comes to the handling of FOIA requests, it received such a request from The Dispatch via email in the early afternoon Feb. 1 for the following information: the current contract of the county administrator, all emails within Jan. 7-31 between the administrator and any member of the board of supervisors and a copy of all county-approved contracts totaling more than $4,000 that the county has authorized or amended between Dec. 1, 2016-Jan. 31, 2017.
The five-work-day window began Thursday, Feb. 2, and ended Wednesday, Feb. 8.
Gee responded the afternoon of Feb. 6. No county administrator contract was included, with Gee noting, “I am not employed under contract.”
No emails were included, as Gee said she was unaware of any emails during the specified period that were not already exempted according to Code section 2-2.3705.7 (2), which refers to “working papers.” FOIA states that “working papers” means those records prepared by or for a specific list of public officials (including county administrator) for his/her personal or deliberative use.
Gee also said she did not recall any approved contracts by the board of supervisors during the time period specified.
No charge for fulfilling the FOIA request was listed.