September is the beginning of several different seasons. It’s football season (as you may remember from my last column, we dropped my son off at Virginia Tech last month, so Go Hokies!), its back-to-school season, in Virginia it’s election season (early Voting starts this week) and in Richmond, it’s “Boards, Councils and Commissions Season” – at least that’s what I’m calling it.
Virginia has a very short legislative session - 60 days in the even years and an even more concise 45 days in the odd years. As we get ready for the 2025 Session, the pace of commission work picks up in September, October and November.
I currently serve as Chairman of the Virginia Code Commission as well as a member of the Joint Legislative Audit Review Commission (JLARC), the Virginia Military Advisory Council, the Secure and Resilient Commonwealth Panel (SRCP), the Judicial Conference of Virginia District Courts, the House Select Committee on Maintaining Campus Safety and First Amendment Expression, and the Virginia Tribes Commission. I also Chair the Virginia Freedom of Information Advisory Council (FOIA Council).
In my time on the FOIA Council, I have come to appreciate the issues surrounding FOIA requests in Virginia. Now that I am the Chair, I am eager to take a closer look at this process.
What is FOIA?
The Freedom of Information Act (FOIA) was enacted in 1966, empowering the public to request access to federal agency records, ensuring that citizens, journalists, and watchdog organizations can monitor government activities. FOIA plays a crucial role in upholding democratic values by shedding light on the workings of public institutions, preventing corruption, and fostering informed public debate. By making government actions visible, FOIA strengthens trust between citizens and their representatives, reinforcing the principle that government should serve the people with integrity and openness.
Virginia FOIA Council
The Virginia Freedom of Information Advisory Council brings this transparency to the state-level. The Council helps resolve FOIA-related disputes by answering questions from private citizens, public officials, and the media about access to public records and meetings. Under Virginia law, the presumption is that all public officials’ documents and all meetings of state and local public bodies are open to the public. However, there are exceptions, which often lead to good faith disagreements between interested parties.
The Council has the authority to issue advisory opinions with the intent to resolve disputes by clarifying what the law requires and to guide future practices. That said, it has no authority to mediate disagreements but can serve as a resource, conduct training seminars, and publish educational materials.
As Chair, I’ve been working on how best to increase transparency in the FOIA process. During our July meeting, I asked Council members to share their concerns and what improvements could be made.
If increasing public access and government transparency is the goal, how do we best accomplish that while balancing the need to keep some documents confidential? Well, that’s the crux of the issue right there.
Ripped From the Headlines
As a case study, let’s look at the recently released policy body camera footage involving Tyreek Hill in Florida. This footage has been in the news and on social media in spite of the fact that the investigation is ongoing and the officers involved are on administrative leave.
In Virginia, body camera footage may be withheld from the public and the press. It would only have to be released once the case was no longer ongoing pursuant to current law.
"Ongoing" refers to a case in which the prosecution has not been finally adjudicated, the investigation continues to gather evidence for a possible future criminal case, and such case would be jeopardized by the premature release of evidence.
Once a case is closed, the list of those individuals who would have a “right” to the footage is short – the victim, the victim’s immediate family if the victim is deceased, the victim’s parent or guardian if they are a minor, and an attorney representing a petitioner in certain legal cases.
Even under these provisions there are additional procedures such as notification of the victim and allowing the victim the opportunity to file an injunction against release. Other exemptions may still be used to redact records due to the conflict resolution clause in this section of the Code of Virginia.
Nowhere does it state that the public or the press has a right to access this material whether the case is ongoing or closed.
While it pains me to say that Florida is doing something better than the Commonwealth, we should be able to at least be able to do as well as them when it comes to transparency.