Don’t you just love when you’re looking for one thing and you find something else really good instead? Like getting lost on the way to Aunt Kay’s house and finding an out-of-this-world tacqueria? Or searching your coats for a set of lost keys and finding a crisply folded sawbuck in the pocket?
It’s the same in the FOIA world.
This is the sentence that grabbed my attention over the weekend: “…In a short series of emails obtained by The Daily Progress as part of an unrelated Freedom of Information Act request…” It’s a story about how officials in Albemarle County and at UVa have been talking about possibly locating a new county school on some university property.
The story may or may not prove to be a a gripper, but the interesting part to me is that the folks at The Daily Progress found out this piece of news not because they went hunting for it but because they noticed it while looking for something else in records obtained by FOIA.
This is a perfect example of why there should never be a “purpose” test in FOIA. It should never matter why someone wants records, in part because what you think you want to see and know may prove secondary to something else you want to see and know.
Virginia’s FOIA requires only that you identify the records you want “with reasonable specificity.” That’s so the government has an idea of what to look for. It’s not a license for government to require you to know exactly what it is you’re looking for before you can get it (readers will recall last week’s column about a locality that required a requester for an inspection report to specify the exact date and location of the report).
Sometimes a request can cover so many people, topics or dates that it’s a fair enough question for the government to ask you to narrow the request -- less burden on them, lower costs for you. You don’t have to accede in this request, and the government can’t refuse to proceed if you don’t, but there’s no harm in asking for a narrowing of scope for what are essentially administrative purposes.
But to ask for you to move from “reasonable specificity” to “exact specificity”? No.
The “look what I found” aspect of a FOIA request is also a good reason why attempts to curb the number of FOIA requests a person are so objectionable.
Two and three years ago there were attempts in Virginia to create legislation that would have given government a mechanism to sue FOIA requesters for harassment-by-FOIA. They both failed, largely because no one could agree on how and when the government would decide that requests had morphed from OK to not-OK.
Around the same time, legislation passed in Illinois that created the category of “recurrent requester” (a softer moniker than the “vexatious requester” originally proposed). That’s someone who goes over a set number of FOIA requests in seven days, one month or one year. Though a recurrent requester can still make requests under FOIA, the government can ignore regular response time limits, though within 21 days they must give the requester an estimate of when the request will be processed.
Why this matters is because sometimes a person may be looking for one thing with his first FOIA request, but in searching the records he sees something else he wants to explore. He makes a second request for those records. And so on. That person may have started the FOIA process with no intention of going past a first request, but based on what he learns, he soon may be making multiple requests for more information on the same topic, or for new information on a different topic. If he were in Illinois, he’d have to parse out his requests over time to make sure he didn’t get branded with an “R.”
And it should not be assumed that what new or different information pops up is of the “gotcha” variety. It’s like reading a newspaper or going to a website -- things catch your attention and they interest you. You start reading about something you never knew existed. Or maybe you read something that contradicts something you thought you already knew. It’s all a process: the process of becoming informed.
We may not always find truffles among the acorns, but it’s nice to know we have the opportunity to do so each and every time we get access to public records. And that opportunity should not be quelled.