FOIA setback is the fault of the Virginia legislature

Editorial Opinion – Virginia FOIA

By Andrew T. Bodoh, Esq.

(Author of Virginian’s Guide to FOIA)

9/22/2015 –  If we wish to restore reasonableness to FOIA, we must persuade the General Assembly to mandate redaction and release of public government records. 

Thomas Jefferson explained the importance of access to government, stating “The information of the people at large can alone make them safe as they are the sole depositary of our political and religious freedom.” –Thomas Jefferson to William Duane, 1810. ME 12:417  An enlightened citizenry is indispensable to a government by the people. Self-government is not possible unless the citizens are educated sufficiently to enable them to exercise oversight.

The Virginia Supreme Court’s 9/17/2015 decision in Department of Corrections v. Surovell  held that the Virginia Freedom of Information Act, (“FOIA”) does not require nonexempt portions of records  be produced if any portion of a document is exempt no matter how small.  They reasoned that the statute does not refer to production of “portions” of records, and therefore an agency is not required to redact an exempt document that may also contain non-exempt material.  In short, if a document contains any information exempt from FOIA, then government may shroud in secrecy the document, including the non-exempt portions of the document.

Since 1968, Virginia has mandated the release of public records under Virginia’s Freedom of Information Act (FOIA), with certain limitations. The law requires public bodies to release records that are not exempt.

Last week, Virginia’s Supreme Court ruled that public bodies do not have to release any part of a document if the document contains some exempt information. For instance, a 1000-page document with one line of exempt information can be entirely withheld from the public’s eyes. The public body has no need to redact the exempt information and release the rest.

In this Supreme Court case, the majority opinion noted a narrow exception to this general rule, where redaction would be required, and the minority opinion wanted a slightly larger exception. The bottom line was that redaction-and-release is not the norm.

While many have criticized the Court for its ruling, the General Assembly deserves the blame on this one. At one time, Virginia’s FOIA was clear that redaction was the norm. This mandate was changed in 1999, perhaps through carelessness.

The change was a small one by linguistic standards. The prior law effectively said that if part of the document is exempt, the public body was to redact the exempt part and release the rest. The current law says, “When a portion of a requested record is withheld, the public body may delete or excise only that portion of the record to which an exemption applies and shall release the remainder of the record.”

The current law is legal equivalent of saying, “When you choose to redact, you have to redact and release the record.” It is meaningless. It has no force to compel.

There’s a clear solution to this problem: the General Assembly should fix it.