Don't bother asking, Virginia FOIA panel tells outsiders

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RICHMOND — A subcommittee mostly comprised of state employees dropped a bill Tuesday that would have expanded rights to public records to non-Virginians.

A majority of the five members present at a meeting of the Freedom of Information Advisory Council, including Stephanie Hamlett, deputy counsel to Gov. Bob McDonnell, senior assistant attorney general James Schliessmann and Bob Tavenner, head of the Division of Legislative Services, decided not to push a 2013 bill referred to their council that would have required Virginia to comply with all requests from U.S. citizens.

Virginia is one of a handful of states in which public bodies aren't required to respond to open records requests from out-of-state residents. The U.S. Supreme Court determined in a monumental decision this spring that it has every right to do so, backing those who support the status quo.

"I don't have an appetite to open it up much more," Hamlett said. "I think there's more of a burden than folks realize."

"I think I agree with the position that I don't see a need to change at this moment," Tavenner said.

The lack of support left the subcommittee with no real action to recommend to the full committee next month, leaving the bill — filed by Democratic Delegate Mark Keam of Vienna in the 2013 session to further transparency in the commonwealth — virtually dead for now.

The General Assembly-enacted Freedom of Information Act dictates the membership composition of the Freedom of Information Advisory Council, which helps review, tweak and even draft FOIA-related bills.

The absence of Ed Jones, the sixth member of the subcommittee and editor of Fredericksburg's Free-Lance Star, meant Tuesday's membership tilted towards state employees.

When Frosty Landon, chairman of the FOI Council and former newspaperman who has consistently been the strongest voice on the council for more openness, suggested the council consider expanding access, he received no support -- not even from David Ogburn, a public policy adviser for Verizon and the only other non-state representative member present Tuesday.

"This is simply not workable in the new age of technology," Landon said of the current law, saying technology and media have changed drastically since Virginia's first public records law was enacted.

State representatives weren't alone. Local government lobbyists said expanding records access to non-Virginians would be "burdensome," even though many bodies already respond to out-of-state requests, and out-of-state residents can always have a Virginian make the request on their behalf.

Public bodies can charge anyone for the material costs and staff time to fulfill records requests, although local government lobbyists said that still doesn't cover costs.

"This would add cost and staff time to already burdened public bodies," said Phyllis Errico, a registered lobbyist for the Virginia Association of Counties.

"The locality is there to serve citizens of that state, not people from California," said Kimberly Pollard, a registered lobbyist for the Virginia Municipal League.

The only observer who stepped up to call for more transparency was Megan Rhyne, one of the state's top advocates for transparency and executive director and lobbyist for the Virginia Coalition for Open Government.

Rhyne said she was disappointed with the outcome, but had a theory on why the state representatives didn't support changing the status quo.

"They're on this board because FOIA is important to them," Rhyne said. "They may not see the denials or the misinterpretations that other agencies or other localities do, because they do it the right way."

Kathryn Watson is a reporter for the Virginia Bureau of Watchdog.org, which is affiliated with the Franklin Center for Government and Public Integrity.

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