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Virginia C apitol C onnections, Fall 2015 15
Then the exemptions under each category are listed. The
personnel exemption is the first one listed under 2.2-3705.1 but it
is not the only one. Twelve more exemptions follow. They are all
governed by that same introductory phrase, just as all the exemptions
in all the other categories are.
The specific phrase that stands out, of course, is “but may be
disclosed,” which means (harking back to the policy statement and
the procedures) that the use of an exemption under this chapter [i.e.,
FOIA] is a discretionary act. They may elect to release the records,
but they may choose not to.
But some are getting hung up on the next phrase that says “except
where such disclosure is prohibited by law.” They say that FOIA’s
exemption prohibits the disclosure. Under this interpretation,
FOIA’s exemptions are discretionary except where prohibited by
law and that law is FOIA’s exemption. But that is circular logic that
would make the several references to discretion meaningless.
Instead, what this section means, and how it has been interpreted
for decades, is that FOIA’s exemption may be invoked unless an
OTHER law prohibits release. That is a law OTHER THAN FOIA;
a law elsewhere in the Virginia Code, or federal law, or court ruling.
And as FOIA’s procedures state, whether electing to use an
exemption or relying on an “other law,” the government must
specify the statute. The ABC specified the personnel exemption not
an “other law.” The ABC did not cite an “other law” that “prohibits”
the release of this file.
I’m not arguing that the personnel exemption does not or could
not apply. It does, it can, I get that.
What I’m arguing against is the misinterpretation of FOIA that
deflects responsibility for the decision to withhold a record on some
“law” and not on the individuals making that decision. This is a
CHOICE to withhold. It is a choice supported by law, but it is a
choice nonetheless.
The agency could also choose to release all or some of the file.
It could choose to redact portions of the file. It could choose to
release a summary of key findings. It could choose to explain the
policies at issue and what would/would not constitute violation of
those policies. But instead, the agency is choosing not release any
information about a disturbing event that generated local, state and
even national attention.
This may sound like inside-baseball to some; the nit-picking of
a statute. But it matters. It matters because government must get it
right, especially on such a prominent stage.
The agency and the administration must take responsibility
for their choice and be willing to change their course in some way
or else be willing to suffer the slings and arrows that come their
way. They should not, however, shift responsibility to a mythical
interpretation of FOIA. Just like the 171 other records and meetings
exemptions in FOIA, the personnel exemption is discretionary, not
mandatory. Period.
Megan Rhyne is Executive Director of the Virginia Coalition for
Open Government.
There’s no confusion:
this is a choice
By Megan Rhyne
Let’s clear up this so-called confusion about whether the
personnel exemption (or any other exemption) is mandatory.
This “problem” arises in the context of the ABC refusing
to release the results of the State Police’s investigation of the
ABC officer who arrested UVA student Martese Johnson. The
investigation clears the officer, but ABC is refusing to release the
report.
In its press release, the ABC states, “Because Virginia law
prohibits disclosure of personnel files, the administrative review
will not be released, andVirginia ABC cannot comment on specifics
of the matter.”
Virginian-Pilot reporter PatrickWilson confirmed with the ABC
spokesperson that the “Virginia law” referenced was the personnel
exemption of FOIA, section 2.2-3705.1(1).
At that, I and others pointed out that FOIA doesn’t prohibit
disclosure. The exemptions are discretionary and records that MAY
be withheld may also be released.
But wait! said a few, both in and out of government. FOIA says
“except where prohibited by law,” so they ARE prohibited from
disclosing the record.
No. That’s just not the case. And here’s why.
Let’s start with FOIA’s policy statement (2.2-3700). In addition
to pointing out that the “affairs of government are not intended to
be conducted in an atmosphere of secrecy,” the policy also states:
Unless a public body or its officers or employees specifically
elect to exercise an exemption provided by this chapter…all public
records shall be available for inspection and copying upon request.
“Elect to exercise” is the same as discretion. Either you elect to
exercise an exemption (and the records are withheld) or you don’t
(and the records are released).
Next, look at FOIA’s procedures for records requests. In 2.2-
3704 it says that the government must give one of four responses to
a FOIA request for records, that is, if they are not turning over all
the records: (1) release some records but withhold or redact others;
(2) withhold all of the records; (3) explain that you don’t even have
the records; or (4) ask for additional time to respond.
With respect to (1) and (2), when records are withheld or
redacted, FOIA requires government to state in writing why the
release is “prohibited by law or [why] the custodian has exercised
his discretion to withhold the records in accordance with this
chapter [i.e., FOIA],” AND the custodian must “cite…the specific
Code section that authorizes the withholding of the records.”
So here again is a clear distinction between discretion under
FOIA and other laws that may prohibit release.
Finally, there is the opening phrase that starts each category
of FOIA’s exemptions. (FOIA’s exemptions
are grouped in categories to make it easier to
locate relevant topics. They are: exclusions
of general application; public safety;
administrative investigations; educational
institutions; health and social services;
proprietary records and trade secrets; and
specific public bodies and limited exclusions.
These are numbered 2.2-3705.1 through 2.2-
3705.7 respectively.)
Each of these sections begins:
The following records are excluded from
the provisions of this chapter [i.e., FOIA]
but may be disclosed by the custodian in his
discretion, except where such disclosure is
prohibited by law.
Legislative Counsel
John G. “Chip” Dicks
FutureLaw, LLC
1802 Bayberry Court, Suite 403
Richmond, Virginia 23226
(804) 225-5507 (Direct Dial)
(804) 225-5508 (Fax)
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