Freedom of Information Act – How Can We Best Serve the Public?

Friday, December 10, 2021

Written by: Martin Crim

Freedom of Information Act – How Can We Best Serve the Public?

Virginia first adopted a Freedom of Information Act, or FOIA, in the 1960s. Its purpose is to ensure that the people of the Commonwealth have ready access to public records in the custody of a public body or its officers and employees and that the people have free entry to meetings of public bodies wherein the business of the people is being conducted.

Every year, the General Assembly considers bills to amend FOIA. How should citizens and the General Assembly evaluate those bills? I recommend that we evaluate them in light of the purpose and principles of FOIA.

FOIA ensures access to public records and meetings of public bodies because such access is helpful to voters in selecting candidates and holding public officials accountable. We support democracy by making public records and meetings available for citizens. Note that assisting private parties with claims against the government is not a purpose or goal of FOIA, but in actual practice, those parties make up a large percentage of persons who make FOIA records requests.

Policy is hard, in part because there are always policy considerations weighing against any option you want to look at. What does something cost? Who has to pay the cost? What are the opportunity costs (that is, what will not happen that you want to have happen)?

With FOIA records requests, the costs fall on state and local governments to provide the staff time and materials for copying. Luckily, most citizens are OK with receiving electronic copies, but there is still a time component in searching for documents. In addition, in many cases, someone has to review the content of the documents to determine if they are exempt from FOIA.

The government can charge the person making the request for the “actual cost” it incurs in providing the requested documents. However, the way that the law and the FOIA Advisory Council have defined “actual cost” is less than the actual costs, so taxpayers pick up part of the charge for FOIA records requests. The opportunity costs are harder to gauge, but a large records request can bring a government to a standstill by diverting all available staff to fulfilling the records requests. If the person making the document request thinks that the price is excessive, they can ask a judge to review it, and the judge can reduce the charge if it is actually excessive.

Members of the General Assembly do not feel any responsibility for the costs of FOIA records requests. They don’t see the costs, they don’t have to raise taxes to cover the costs, they don’t hear from constituents about the costs and their support staff are not diverted from working for them by FOIA records requests. They, therefore, have no frame of reference for the strategic or vindictive use of FOIA records requests.

In litigation, parties will use FOIA records request to bypass civil discovery and, if they have deep enough pockets, to bring a government agency to a standstill due to the size of the records requests. There are also people who are irrationally hostile toward the government due to personal grievances or ideology and who abuse FOIA records requests to harass and obstruct the operation of government.

How should the misuse of FOIA records requests inform policy decisions? If we return to first principles, we should look at how the release of information would serve the public in understanding how the government works and holding government officials accountable. Reducing the cost of FOIA abuse does not, I submit, serve either of those goals.

FOIA is a good thing, but it is bad policy to change FOIA to make its abuse easier. Your government works for you, and anything that impedes the work of government harms the public interest. Please take an interest in this year’s FOIA bills and ask whether they serve the public interest.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer