The Intended Use of FOIA
I'm incredibly proud of the Cavalier Daily for wading into the controversy surrounding UVA's response to the American Tradition Institute's request of a former professor's email on climate change.
The school paper penned an editorial for Monday's edition that carefully addressed a report prepared by the American Constitution Society suggesting that state FOIA laws should be reformed to protect academic freedom.
I was puzzled, though, by one phrase in the editorial. When pointing out that recent FOIA requests were politically and ideologically motivated, the article said, "the requests have generated more controversy than genuinely revelatory material pertaining to their subjects, suggesting that state FOIA laws are not being used as intended."
FOIA laws not being used as intended.
I'm not sure what that means. Is there legislative history from 1968 that gave a statement about how the law should be used? Is there a policy statement in current law to that effect?
No. The current policy statement about FOIA says only, "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."
In addition, the General Assembly has repeatedly rejected attempts over the years to impose any kind of "purpose" test into FOIA, meaning, it doesn't matter why someone wants records. It is not up to the government, or you or I, to decide who has a proper reason for wanting the records and who doesn't.
Some say FOIA is supposed to educate the electorate so it can make informed decisions when voting. Some say FOIA is for records that will show "how government works." There may be other theories, too.
So, what is the intended use of FOIA?
Jason Spencer
4:46 pm on Monday, September 26, 2011
The intended use is give people access to information that is rightfully theirs to begin with. It's to inform, to educate, to hold accountable and to make sure public bodies operate with transparency. Once upon a time in Arizona -- I spent some time there about a decade ago, so that state's law may have changed -- governments and other public entities were forbidden from asking "why" a person requested information (although they were allowed to ask whether the information was requested for commercial use). I would love to see that kind of limit placed on public (including semi- or quasi-public) entities everywhere :)
That's my 2 cents. Would love to hear more from the community on this.
Megan Rhyne
9:33 pm on Monday, September 26, 2011
Virginia does not have a purpose test. They can't demand to know what someone wants a record -- not even for commercial purposes!
Pam Kincheloe
8:06 pm on Friday, September 30, 2011
Not every government document is "open"to FOIA requests.
Megan Rhyne
3:22 pm on Monday, October 3, 2011
All records generated in the course of public business are public records. An exemption in FOIA may apply, but the government does not have to use the exemption (i.e., it can chose to give out records even if they could be withheld under an exemption). And there may be other parts of the Virginia Code that prohibit release of certain public records.
Whether a record is "open" or not, though, does not have bearing on whether a person can or should be asked why he/she wants the record.
Pam Kincheloe
6:49 pm on Monday, October 3, 2011
If the FOIA law pertaining to the release of a particular document is permissive rather than mandatory, the reason for the request would be relevant and have bearing on the release.
Megan Rhyne
6:53 pm on Monday, October 3, 2011
Bearing perhaps on the release of exempt records, not on non-exempt records.