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Virginia lawmakers move to tighten access to public records

By   /   January 25, 2013  /   1 Comment

A bill that clarifies that legislative aides have the same FOIA protections as legislators themselves moved forward this week, while a bill that would expand Virginia FOIA access to all U.S. residents was put on the table for later.

By Kathryn Watson | Watchdog.org Virginia Bureau

ALEXANDRIA — A bill that clarifies the Virginia Freedom of Information Act to include legislative aides in the lengthy list of exempted public servants is one step closer to becoming law.

A slightly amended version of Delegate Tag Greason’s HB 1639, which would allow legislative aides the same privacy protections as lawmakers when working on correspondence or working papers for their bosses, made it through the General Assembly’s FOIA subcommittee on Thursday with a 7-0 favorable vote.

Virginia FOIA law already explicitly and broadly protects legislators’ working papers — or decision-making documents — and correspondence. Greason’s bill as amended clarifies that a, “‘Member of the General Assembly’ means each member of the Senate of Virginia and the House of Delegates, and their legislative aides when working on behalf of a member.”

“There’s many of us who believe we haven’t extended or expanded the law with this legislation at all,” Greason, a Republican from Landsdowne, told Watchdog.org “We have simply clarified what most people thought was already in place. And then, therefore, we haven’t expanded what was already the practice that we have.”

Delegate Tag Greason, R-Landsdowne, filed a bill that clarifies that legislative aides have similar protections from FOIA as their bosses.

Full-time legislative aides, assigned to each of the 140 part-time members of the General Assembly, do much of the hands-on work for legislators year-round and earn roughly twice as much as their bosses. As of 2012, legislative aides earned roughly $38,000 per calendar year plus per-diems, compared with delegates’ pay of $17,640 and senators’ pay of $18,000, plus per-diems.

Megan Rhyne, executive director for the Williamsburg-based Virginia Coalition for Open Government, opposed the original bill for shrouding transparency. The amended bill, she said, clarifies the assumed status quo.

“Everyone kind of assumed that, in acting on a legislator’s behalf, a legislative aide was already covered by that exemption,” Rhyne told Watchdog.org.

Hampton Roads’ Daily Press in a Wednesday editorial spoke out against Greason’s bill, saying there is, “no reason” to exempt aides.

“Such communications can be an essential part of the official business of our elected officials as well as the sausage-making process of our legislature,” the editorial read. “When a lawmaker who is employed by the taxpayers lobbies for keeping secrets, it’s a red flag that those communications might contain details in the public interest.”

But the question then, becomes, why is legislators’ work — done on taxpayer time — exempt from FOIA law in the first place? That’s what Watchdog.org asked Greason.

“That (FOIA) statute was written many, many years before I arrived here, so I can’t speak to the underlying rationale for why the General Assembly decided that that was the way to go, nor does my bill address that issue,” Greason said.

Greason said his intentis to protect communication between a legislative aide and a constituent.

“We never want constituents … to feel like they can’t openly communicate with their elected officials,” Greason said.

A House subcommittee tabled a bill by Delegate Mark Keam, D-Vienna, to expand FOIA access to all U.S. residents.

While the subcommittee unanimously voted for Greason’s amended bill, it put off a bill filed by Delegate Mark Keam, D-Vienna, that would expand Virginia FOIA rights to all U.S. citizens.

Instead of taking immediate action, the subcommittee sent the bill along to the Virginia Freedom of Information Advisory Council, the state agency tasked with resolving FOIA disputes and offering expertise for FOIA bills.

Virginia is one of a handful of states where only in-state residents can demand records under FOIA. The others are Arkansas, Missouri, New Jersey and Tennessee.

“I’ve always thought that government should be open to taxpayers, who actually fund everything that we do here,” Keam told Watchdog.org in an interview last week. “And the idea that everything we do should be known to the public … that just promotes democracy and accountability and trust, and overall, I think it just makes politics more personal for people.”

Rhyne said the Virginia Freedom of Information Advisory Council, which consists of 12 members of the media and lawmakers, among other represented groups, won’t just brush Keam’s bill aside. It probably will come back with a more fleshed-out version of the bill in time for the 2014 legislative session, she said.

“Whenever they are referred a bill, they always look into it,” Rhyne said. “It’s not just a, ‘hey let’s get rid of it and it will go away quietly.’ The FOIA council will look into it.”

Keam’s bill as written would also allow a public body to require up-front payment before providing records when the cost is likely to exceed $100. Keam offered that safety net to appease local government representatives, who worried they may not be able to make out-of-state FOIA applicants pay up.

And the fee, rather than the out-of-state provision itself, was the major sticking point for lawmakers on Thursday, something that made Rhyne optimistic.

“What was encouraging about this (bill) with Keam is, in the past when the issue of opening FOIA up to non-citizen comes up, there’s more resistance to that notion,” Rhyne said. “This time, there was more resistance to the part about … requiring pre-payment.”

Contact Katie Watson at katie@watchdogvirignia.org. 

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Kathryn Watson is an investigative reporter for Watchdog.org's Virginia Bureau. Her work has appeared in places like Drudge Report, Washington Examiner, Reason and Human Events, and she has made appearances on Fox News and NBC4. An alumna of the National Journalism Center, Katie is a member of Investigative Reporters Editors. She graduated with a journalism degree and highest honors from Biola University in L.A., where she ran the student newspaper. After college, she reported for a mid-sized newspaper in Santa Barbara, Calif. Her work has earned her "Best in Show" and two first-place awards from the Virginia Press Association.

  • Kansan

    Often, legislators have been embarrassed by being less careful about their correspondence with sleazy organizations and front groups such as the American Legislative Exchange Council. I know of at least one Congressional rep who has staffers use personal e-mails to keep the public from seeing their business. Sarah Palin did this in Alaska and the courts found against her. She was using a Yahoo account to keep public scrutiny from unethical activities in which she was engaged.

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