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Judge misses the full intent of FOIA

November 12, 2007 12:35 am

I write in response to the Nov. 8 article titled "Spotsy ordered to release 4 e-mails." While there are certainly heartening parts to Judge David Beck's decision, I fear that once again a failure to interpret the letter of the law of Virginia's Freedom of Information Act will result in future withholding of records that should be public.

Judge Beck stated county officials did not have to disclose the blacked-out por-tions of a Sept. 9, 2005, e-mail between Super-visor Gary Jackson and former political leader Russ Moulton because FOIA states that it "should not be construed to dis-courage the free discussion by govern- ment officials or employees of public matters with the citizens of the commonwealth."

While this could be thought of as an interesting policy argument, it is not an exemption to disclosure under FOIA. Virginia's FOIA states clearly that all public records are to be deemed open unless a public body specifically exercises one of the discretionary exemptions listed in the FOIA statute.

What one could debate in this case is whether or not the blacked-out e-mails were records in the transaction of public business, as is required by the statute to be a public record; the county attorney argued that these e-mails were not, but the judge makes no mention of this distinction and instead leaves one with the impression that if a public body feels that disclosure would "discourage the free discussion by government officials with the citizens of the commonwealth" then they can withhold the records.

This is simply not the law. What if the former Loudoun County Board of Supervisors had been able to use this argument to withhold e-mails that showed collusion between some board members and developers?

It seems that Judge Beck has made up a very broad discretionary exemption to FOIA that the General Assembly, in its wisdom, never put into the exemptions section of the statute.