13 April 2017
The public’s right to know was a topic of spirited conversation at a Freedom of Information Act (FOIA) training session on Thursday morning (April 6).
About 20 county workers gathered at the high school to learn from Maria Everett, executive director of the Virginia FOIA Council. Many of them are responsible for responding to freedom of information requests from Fluvanna residents.
Everett, who called herself “head FOIA geek,” led a lively interactive session that satisfied FOIA training requirements for her listeners and sparked some interesting discussion.
Throughout the session, Everett called on her listeners to see themselves not just as county workers but also as private citizens, such as parents investigating concerning information regarding their children’s schools. Having that perspective makes a difference when thinking about FOIA, she said.
County workers are a key face of government, Everett said. She joked that her listeners would go home and put on “jeans that ought to have been thrown away years ago and ratty t-shirts.” But, she said, “When you woke up this morning and donned the uniform, you became the government.”Everett acknowledged that the public doesn’t always have a favorable view of government or the people handling FOIA requests. She urged her listeners to be open and approachable.
Her listeners are the custodians, not owners, of public records, Everett said. Public tax dollars pay government salaries and fund the construction of government buildings so that officials can make decisions that affect the public. “We don’t own anything. That’s why they use the word ‘custodian,’” she said.
Not all requests contain the “magic word” FOIA, Everett said. When she called her local government office looking for records regarding an old well in her backyard, she said it didn’t dawn on her till later that she had just made a FOIA request.
FOIA was enacted in 1968 as a Virginia law. “FOIA gives citizens and the media the right to look at our records or receive copies of our records,” she said.
There are rules governing how government must deal with FOIA requests. Once a person makes a request, “the clock starts ticking,” she said. Custodians must respond within five business days.
There are five acceptable responses, Everett said. The first is to give the person the requested record.
The second response is to communicate with the requester that five days will not be an adequate amount of time to gather the information. Within the initial five days the custodian must explain in writing why an extension is needed. The custodian then has an additional seven business days to respond.
Another possible response is to give the requester part of the information but not all. Similarly, the custodian can deny the request.
There are 165 exemptions under FOIA law, which attempts to balance the public’s right to know with personal privacy. A student’s school records are not accessible through a FOIA request. A sheriff’s office may withhold tactical information, such as how it would respond in a hostage situation.
But, Everett cautioned, her listeners must interpret exemptions narrowly. “You cannot blow air into it to make it cover more than it does,” she said. “If you’re not sure whether a record is open or not, you defer to openness.”
She also warned the Fluvanna workers to ignore what she called the “icky factor,” which is when a custodian, for one reason or another, doesn’t want to comply with a request. “It doesn’t matter why they want it or what they’re going to do with it,” she said.
Once she handled a FOIA request for the names and addresses of the people who attended one of her sessions, she said. She suspected the requester was attempting to use the information in a marketing campaign. “They came to my session to learn about FOIA, not to become your mailing list,” she said she thought. But her opinion didn’t matter, she said, so she followed the law and complied.
The fifth acceptable response to a FOIA request is to inform a requester that the desired record doesn’t exist, “or we’re not the proper people to give it to you,” she said. “Then tell them who is.”
Even if a record is exempt from mandatory sharing, it may still be released as long as that release is not prohibited by other law.
“Think: Is there really harm in releasing this?” Everett asked. A sheriff’s office may find that releasing some tactical protocols helps to deter crime, she said. Releasing the resume of a well-qualified new hire may dispel talk of nepotism.
“FOIA is not free,” Everett said. “We’re one of the few states in the U.S. that allows charging for FOIA requests.” But, she said, “You don’t get to make up what you charge… It’s called cost recovery, not revenue generation.”
Several rules govern how to charge for FOIA requests. The charge must reflect the actual cost of obtaining and preparing the record. “But it has to be reasonable,” she said.
Everett cautioned her listeners to be careful about what kind of records they create. She once received an inquiry from a county parks and recreation department about whether it needed to hand over the registration forms for a group of children enrolled in a pottery class.
“But you don’t understand,” she said she was told when she informed them they needed to comply. The entry form included personal information, including social security numbers and birth dates.
While the social security numbers could be redacted, the birth dates could not. “Everyone here knows birth dates are the keys to the kingdom,” she said, referring to fraud. If the parks and recreation department wanted to know the ages of the children attending, she said, they should have simply requested an age number.
She told another story about a Virginia employee who opened an email with an account of how drunk he was the night before. In his second paragraph he discussed county business, then he concluded by saying he intended to get drunk that night as well.
The second paragraph is a public record, Everett said. The beginning and end of the email could be redacted, “but conspiracy theorists will love that,” she said. “Don’t mix business with pleasure.”
The issue of video footage captured by school bus cameras and law enforcement body cameras generated much discussion. That footage is a public record, she said.
In one instance, a mother wanted to see footage of her child in a fight on a school bus. Since the school system couldn’t blur out the faces of the other children, “they gave the mom nothing,” she said. “That was wrong.”
When Sheriff Eric Hess said his office lacks the capability to edit footage in that way, she warned him that he wouldn’t like her answer. “You need to invest in the technology of redaction,” she said.
Another option for the school system would have been to send the video footage to a business specializing in video editing. That business could have blurred out the faces of the other children while allowing the mother to see her own child’s involvement in the fight.
The mother would have borne the cost of the video editing, she said, and the business would not have been subject to FOIA time limits.
“The part that was eye-opening to me was the stuff with the body cameras,” said Hess after the meeting. “We’re going into a whole new era with all the technology and it’s going to be a big challenge.”
Hess said he and Capt. David Wells learned so much from the session that they have decided to invite Everett to the sheriff’s department to give a presentation geared toward law enforcement. “There are so many things that are different for law enforcement,” he said. “It was very informative.”
“FOIA training is the most important thing we do,” said Everett after the session. “It dispels the myths.”
FOIA is government “by and for the people,” Everett told her listeners. She reminded them of the public’s right to know. “They are not the enemy out there. They’re our fellow citizens.”