Virginia delegate wants to exempt aides from FOIA

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News,Virginia,Watchdog

ALEXANDRIA -- Virginia's exemption-filled sunshine laws could turn partly to mostly cloudy.

A bill filed by Delegate Tag Greason, R-Lansdowne, would add the correspondence and working papers of taxpayer-supported legislative aides to the list of items the state can lawfully deny the public.

Greason canceled his scheduled interview with Watchdog.org citing a conflict, and he didn't return calls yesterday.

The Virginia Freedom of Information Act protects "working papers" -- virtually anything written in a decision-making process -- and "correspondence" of General Assembly members. But, Greason's proposal takes that one step farther by specifically shielding aides' documents, as long as they are working for their boss. And that, say government transparency advocates, is a step in the wrong direction.

"In short, we oppose it," Megan Rhyne, executive director of the Williamsburg-based Virginia Coalition for Open Government, told Watchdog.org.

Ken Bunting, executive director for the National Freedom of Information Coalition, said Virginia could be unique if it creates a staff-specific exemption.

"I'm not aware of any state that has a specific exemption for legislative aides," said Bunting, even if the law might already imply they are exempt.

To some extent, the Freedom of Information Act already presumes protection for those in legislators' close circles, Rhyne said. At the same time, by specifying that aides are exempt from the law, the protection potentially could expand even more to those who work with aides in the decision-making process, she said.

"The more people you list, the more people who can claim it for everything," Rhyne said. "When you name someone, it means that person gets to claim the privilege, and then the people around them get to claim the privilege on the person's behalf. ... It just sort of keeps widening these concentric circles."

Rhyne wondered if Greason's bill might create some unintended consequences. By specifying the exemption for legislative aides, the bill potentially leaves other public employees like legislative secretaries -- who might have otherwise been covered -- more vulnerable to public requests.

"I think they might be trying to expand the privilege, but the bill might actually, in fact, restrict it because by naming the aides and not naming anyone else that the legislator works with," Rhyne said.

Virginia's 140-some legislative aides earn a public salary of a little less than $40,000 annually, plus varying per diems.

"Working papers," or "records prepared by or for ... a public official for his personal or deliberative use," according to state law, is already a shockingly broad exemption in Virginia, Rhyne said. Unlike in some other states, in Virginia, "working papers" don't become public record once an agreement or decision discussed in them is reached.

Bunting said a strict working-papers exemption is based on the philosophy that decision-makers and counsel are more candid when free from the "fear of disclosure." But, Bunting said it makes sense to free those documents once a decision is made.

"The better government and the better governance, as far as I'm concerned, is always when there's sunshine in government," he said.

The nonprofit government transparency site Sunshine Review gives Virginia a "B" for overall transparency.

Still, as cloudy as Virginia FOIA can make things, it could be worse. Only about half of U.S. states' FOIA laws require the legislature and executive branch to comply.

"On the one hand, there are plenty of states where the General Assembly is not subject to the law at all," said Rhyne.

"So at least in Virginia, the General Assembly is written into the FOIA" -- even though they "have so many exemptions it's almost like they're not," she added.

And therein lies much of the problem, Bunting said. The lawmakers covered -- or not covered -- by transparency laws are the ones creating the laws.

"The problem there is that when they make up their own rules, they can change them as they go along," Bunting said. "And we see instances where state legislators do that all the time."

Kathryn Watson covers Virginia public policy and politics for the Franklin Center on Government and Public Integrity.

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