LETTER TO THE EDITOR: Why Freedom of Information Act Legislation Pending in the General Assembly Needs Our Support
FOIA "is the kind of 'lance' that MLK, Jr. talked about in his Letter from a Birmingham Jail, that, once applied, exposes injustice to the 'medicines of air and light.'"
Right now, two very important bills are in committee at the General Assembly—House Bill 159 and House Bill 160, both introduced by Del. Marcus Simon—designed to address critical problems with how the Virginia Freedom of Information Act (VFOIA) operates in the Commonwealth to ensure transparent, accountable government.
Generally, HB 159 provides extreme clarity that when citizens (“requestors” in VFOIA parlance) seek to enforce the statute in court against officials who refuse to comply with legitimate records requests, they do NOT have to go through cumbersome and arcane litigation-type service of process requirements.
This was never intended in the legacy statute’s wording, but somehow the rotten got in with the good.
HB 160, also critically important, describes the level of scienter (a legal term for “culpable mental state”) needed to establish liability when state officials fail to comply with requests. Included among mitigating factors (i.e., things that excuse conduct) is good faith reliance on advice of lawyers for the entities for which those individuals work.
Why HB 159 and 160 Matter
The beneficiaries of a corruptly imported service of process requirement in the VFOIA enforcement context are not just the scofflaw public officials who utterly refuse to respond to citizens’ requests. They are your usual run-of-the-mill bad [faith] actors.
But it is the law firms—who have, by and large, cornered the transparency and accountability market created by the statute and, through connections in the judicial system, subverted the language and the will of the people behind the language in order to protect their own schedules and revenue streams—with perhaps a much greater stake in the foul status quo.
When you impose more costs on the community by way of a “service of process” requirement, you can achieve delay and perhaps defeat a citizen’s enforcement effort in the womb. When the law firms advise their institutional government clients, as they clearly are, to be contumacious with respect to complying with the law—and I am putting that very benignly—then it makes sense that they would strategically manage being hauled into court to defend their scofflaw clients; i.e., that’s a lot of litigation across the full spectrum of government business throughout the entire Commonwealth. (That is an awful lot of annual revenues to book and assure; and we clearly saw in Spotsylvania for the entirety of the experience with the swim program how the Lawfare works.)
However, for that approach to work (think dozens of school boards, counties, units of government and literally thousands of officials not wanting to produce embarrassing texts and emails, as our good friends in Spotsy showed us), the firms’ lawyers prefer traditional litigation modes, not rocket dockets all over the Commonwealth. By injecting service of process slop into the enforcement context, the firms put the litigation on advantageous terms for themselves at the expense of the citizenry.
Imagine your surprise in court after doing everything imaginable to get legitimately requested records and duly notifying the officials of the need to come to court when the lawyers show up with their empty bankers boxes: “Our client was never ‘served’ with process; despite whatever the ‘statute’ says, the benchbook makes clear that service is needed; in any event, now that we’re here, perhaps this can be scheduled for hearing a few months from now pending, of course, proper service of process by the plaintiffs…”
Yuck—the precise destruction of the baked-in urgency the VFOIA’s language was deliberately crafted to reflect.
Money plus revenue assurance. All paid for by the taxpayers. Those realities, combined with other horrors of illegality, are incredibly costly to our communities throughout the Commonwealth. It’s our money paying for our frustration, for our despair, and our diminishing trust in the integrity of our institutions and governance. It puts us at our wits’ ends when we KNOW that government doesn’t work and that we’re paying handsomely for that failure.
The VFOIA is ours, not the law firms’. It is a DIY that aids in the transparency and accountability portions of our system of self-government by ensuring that public officials produce factual records associated with their performance of duty. VFOIA is the kind of “lance” that MLK, Jr. talked about in his Letter from a Birmingham Jail, that, once applied, exposes injustice to the “medicines of air and light.”
If only our Swim Team (you know the one) had had that lance. We didn’t. But, with a serious effort behind HB 159, future members of our Commonwealth communities should.
Future families and stakeholders need a VFOIA they can enforce.
Call Delegate Marcus Simon (804/698-1013) and tell him you want HB 159 passed, as written, and enforced, as written. That’s how we roll.
Theodore C. Marcus
“Coach Theo”
Spotsylvania, Virginia
Local Obituaries
To view local obituaries or to send a note to family and loved ones, please visit the link that follows.
Support Award-winning, Locally Focused Journalism
The FXBG Advance cuts through the talking points to deliver both incisive and informative news about the issues, people, and organizations that daily affect your life. And we do it in a multi-partisan format that has no equal in this region. Over the past year, our reporting was:
First to break the story of Stafford Board of Supervisors dismissing a citizen library board member for “misconduct,” without informing the citizen or explaining what the person allegedly did wrong.
First to explain falling water levels in the Rappahannock Canal.
First to detail controversial traffic numbers submitted by Stafford staff on the Buc-ee’s project
Our media group also offers the most-extensive election coverage in the region and regular columnists like:
And our newsroom is led by the most-experienced and most-awarded journalists in the region — Adele Uphaus (Managing Editor and multiple VPA award-winner) and Martin Davis (Editor-in-Chief, 2022 Opinion Writer of the Year in Virginia and more than 25 years reporting from around the country and the world).
For just $8 a month, you can help support top-flight journalism that puts people over policies.
Your contributions 100% support our journalists.
Help us as we continue to grow!
This article is published under Creative Commons license CC BY-NC-ND. It can be distributed for noncommercial purposes and must include the following: “Published with permission by FXBG Advance.”