03/19/15: Virginia can do better on public access

This op-ed appeared in The Virginian-Pilot on the date shown.

“Sunlight is said to be the best of disinfectants.” — Justice Louis Brandeis, 1914

THIS WEEK is Sunshine Week, the 10th year of a national focus on our access to public information. Across the country, an assessment of the state of that access is occurring.

Virginia’s open government rules can be found in our state code, beginning at §2.2-3700. First adopted in 1968, The Virginia Freedom of Information Act has been modified numerous times since. At its core, though, is the concept that the people of Virginia have “ready access to public records … and free entry to meetings of public bodies wherein the business of the people is being conducted.”

Sounds impressive, right? In practice? Not so much.

First, the act has a lot of exclusions. Some make perfectly good sense, like the exemption on disclosing state income tax returns. I can imagine political opponents making hay of each other’s returns if this information were readily available. Medical records are exempt, as are college grades and scores on state licensing exams.

But some of the exclusions are big enough to drive a truck through. One is the exemption for working papers and correspondence. This allows a relatively large group of people, including college presidents and nearly every elected official, to avoid disclosing information when asked. University of Virginia President Teresa Sullivan used this exemption to avoid releasing her emails regarding the now discredited Rolling Stone article on gang rape. Virginia is alone in the country in extending this exemption to college presidents. Efforts in the recently completed legislative session to remove the exclusion failed.

Another area of concern is the use of closed meetings. The act provides 44 purposes, a few of which are for specific agencies, for a closed meeting. Our local city councils often invoke the exemption to discuss personnel matters or business expansion. Discussions in closed meetings are supposed to be limited to the specific reason for the session. That reason is supposed to be announced in advance.

The problem: We have no way to know that the discussion was limited to that reason. Meeting minutes, if they exist, are also excluded from disclosure. We have to trust that they didn’t discuss anything out of bounds.

Perhaps more disconcerting: It’s often clear that decisions have been made in those closed meetings. Members, required to vote in public, often do so without any public debate.

“Free entry to meetings of public bodies” is hardly compatible with the General Assembly’s penchant for early-morning committee and subcommittee meetings.

Transparency Virginia, a new coalition of 17 organizations advocating for more open government, issued a mid-session report on how our legislators prevent citizens from observing their work.
Early morning meetings — some as early as 6 a.m. — make it difficult for citizens to attend. Bills are frequently added to or removed from public dockets, and public testimony is limited or prohibited, reducing the opportunity of citizens to be heard.

We can do better. Like so many things, improvement will happen only if Virginia’s citizens demand it.

With all 140 legislative seats on the ballot this fall, let the pursuit of sunshine be one campaign issue on which we all can agree.