There's a kewl blog out there that I read called "Bacon's Rebellion". There have been a couple of recent blog articles there that relate to my FOIA focus. (It's not long before the 4th of July, FOIA's birthday, will arrive and I will be back on topics of local interest....anybody wondering what my I've been working on besides FOIA information:)

Anyway, on June 16, 2009, the blog article "Shining a Spotlight on Transparency" was rolled out. I had to check my audio to be sure I didn't miss a drum roll because it sure deserved one! The opening two sentences set the tone: The legitimacy of government is based on the consent of the governed. As owners of our state government, every citizen of Virginia is entitled to full and complete information about how their government acts and what their Representatives do."

Wow! That pretty much says it for the backbone of the FOIA at all government levels. WE are the government. Government is not just elected officials and fancy buildings! It is "WE THE PEOPLE". The government works for us, not the other way around.

The article then goes on to discuss recent events in Federal FOIA and Virginia FOIA. I really like the way that it is pointed out that accessibility to information alone is NOT enough. That information MUST be in a format that citizens can understand. We do not need tools that we can't use. We need consistently organized, understandable information. Clothing information (or cloaking, if you prefer) in a manner that make it available but not useable is atrocious.

It is further noted, that the THOMAS JEFFERSON INSTITUTE is initiating an awesome project. They will examine the current FOIA practices of jurisdictions and use that data to develop standards and best practices. This concept could bring a degree of uniformity to jurisdictions that would be a tremendous service to citizens. I know that every jurisdiction wants to keep its "individuality" but there is no reason why they can't do that while still having uniformity in those areas that all jurisdiction have in common. It's too bad that the study will not include Towns, but perhaps that is coming.

This has particular interest to me as it could apply to the internet. If every jurisdiction used a certain part of their website that was consisten across all jurisdictions but allowed for independence in other parts of the website. It would make it so much easier for citizens. We are becoming such a mobile society, with people moving several times during the course of their lives. If there were some degree of uniformity, it would be so much easier for citizens to access information.

It could also save a ton of taxpayer's money! Part of the website would be prepackaged saving development costs and making it easier for employees to use. The remainder of the website could be used as the jurisdiction wishes to promote its unique features and events. It would also make it easier and more cost effective for small jurisdictions to have a website.

The article closes with this: By providing usable data governments allow citizens to improve their quality of life and make government more efficient." What a wonderful concept! Increase efficiency of government while improving citizen access. Sounds like a win-win situation to me.

The 2nd of these 2 articles will be discussed tomorrow.

Just a couple of years ago, I was pretty darned ignorant on the FOIA. I knew it was there. I had heard it mentioned somewhere along the way, but it had no real meaning for me. As I became interested, I started looking around on the internet. I really do not intend to 'plug' one resource over any others, but The Virginia Coalition for Open Government website and the help they provided via email and telephone, those have been the best resources for me.
The Coalition for Open Government is a non-profit agency dedicated to keeping government 'openness' growing. They do not sit back and assume that what is available is enough. They work to expand the parameters of openness, while simultaneously helping to empower citizens in making the current law work for them. They are also a 501c3 organization so any donations made are tax deductible.

If you have never made a FOIA request before, and would like someone to help you through the process, you will find all the resources that you need right here at the Virginia Coalition for Open Government website.

Rather than recreate the wheel, you can use their frequently asked questions (faq) section for some explainations and definitions in plain English (very little 'legalize' is used). On the page with the FOIA itself, there is even a copy of the form for carrying your request on to district court if need be (directions for filling it out are also there).

The FOI Citizen's Guide is where I really got my start. This document pretty well takes you through the process of learning what your rights are under the FOIA. Basically, it provides information on what it is you are entitled to and how/when the government agency is required to respond. It also provides information on what your rights are as pertains to public meetings.

One of the links on their pages will take you to their bank of newsletters. You can find a lot of information. They work hard to provide you with information concerning recent FOIA related events, evaluations of the FOIA process, bills that may be coming up concerning FOIA, FOIA bills in the legislature, and some of the not-so-good things that have happened relative to FOIA.

What discussion of the FOIA would be worth its salt without a decent example? Not this one....this one has an example.

This is a quest for information that began with a statement made by the Town Manager to the Christiansburg Town Council on December 16, 2008. The comment can be found in the Discussions by Mayor and Council Members section of the Minutes of that meeting:

2. An ordinance amending Chapter 10 “Erosion and Sediment Control” of the  Christiansburg Town Code. Manager Terpenny explained that the State periodically reviews our Code, and due to minor changes in definitions in State Code, was  advised that this amendment is necessary to bring our Code into line with State Code. Councilman Wade made a motion to approve the ordinance amendment as recommended, seconded by Councilman Barber. Council voted as follows: AYES: Barber, Carter, Showalter, Stipes, Vanhoozier, Wade. NAYS: None.

Several days later (and several times since), I have asked for a copy of that document. I was told that the ordinance is still being written. It would appear from this information that Town Council actual voted on and approved a non-existent ordinance concerning Erosion and Sediment Control.

Despite multiple requests to the Town and being told that the ordinance was being written, I decided to do a bit of further research. I contacted DCR (Dept. of Conservation and Recreation).

Now, those people have really got it together when it comes to access to public records. They did a superb job in handling my requests, providing the documents I requested quickly and thoroughly, and where I had requested documents that they did not have, they told me who was responsible for those documents and where to obtain them. THAT is a 'gold star' FOIA response in my book!!!

Anyway, the results of my FOIA request can be found on the Special Studies page of MyVAResources.com (or if you're in a hurry go directly to the document, it is a fairly large pdf file). This is the Report following a DCR review of Christiansburg's Erosion and Sediment Control Program. The first page is a summary with more information following in the document. This first page is entitled: Corrective Action Agreement, Town of Christiansburg, Erosion & Sediment Control Program, March 19, 2009. Note that is the dte of the corrective action. The minutes indicate this was brought before Town Council on December 16, 2008. The town manager signed the agreement to complete the corrective actions (by Sept. 15, 2009). The review of the program by DCR was conducted October 21 & 22, 2008.

I must admit that I am a bit puzzled by what appears to have been Town Council voting on something that didn't exist, or else I have been denied access to public records. I have asked multiple people, including some of the Town Council members about this document, but I have only been told that it is being written. Sometimes, strange things happen when FOIA requests are concerned.

This would have gone unnoticed by me if it were not for the fact that we have the FOIA and I took the time to learn how to use it. See more information about the Town ofChristiansburg and the FOIA at http://www.vaopengov.org Citizen Initiative for Transparency Study Report.

What would happen if you went to the Town/City/County in Virginia where you live and you asked for certain documents, and you were told that the they could not give you the documents that you requested.

1. You could do one of several things in response:
2. You could walk away and just give up. (Free)
3. You could  read the FOIA codes for yourself to see if you should get access to those documents. (Free)
4. You could contact the Virginia Coalition for Open Government and request they provide you with some guidance. (Free)
5. You could contact the Virginia FOIA Advisory Council for an opinion. (Free)
6. You could simply contact an attorney to see if legal action is appropriate. (Fees are often charged for that initial contact just to find out if you have a case.)

Let us assume you make the decision to get some research done before you invest any money in attorney fees. You take the steps to contact either #4 or #5 above, giving them ALL of the information you can on your situation. Either one (or both) come back with information that reveals that you do not have the right to access to what you have requested. Now, you at least know what you can or cannot do, and it has cost you no more than a little time.

On the other hand, if #4, #5, or both of them advise you that you do have the right to that information, you may now wish to proceed to an attorney and pursue legal actions to obtain the records that you request.

There is one very good reason to do your homework before you jump into a 'writ of mandamus' seeking a Court order to have your jurisdiction give you the requested information (provided at the Marion Brechner Citizen Access Project website):

Definition: Attorneys' Fees, Requestors (Public Records)

Capsule:

If a court finds a public body violated the open records law by denying the inspection of a record, the requester of the record shall be entitled to recover "reasonable" attorney's fees from the public body. The fees are to be awarded if the requester "substantially" prevails unless special circumstances would make an award "unjust." A court may, among other things, consider the reliance of a public body on an opinion of the attorney general or a decision of a court that "substantially" supports the public body's position. VA. CODE ANN. § 2-3713.D (2007).

In other words, if the jurisdiction has violated FOIA, you have the right to have the jurisdiction pay your legal fees. The Court does have the right to evaluate those fees and, if you have gotten a bit exorbinate, hiring Benjamin A. Civilette, whose rate is $1000.00 per hour, I think you can count on the Court reducing the awarded amount substantially.

By using the Virginia Coalition for Open Government website's Opinions section, you can find out if there are any cases similar that the jurisdiction could be basing their argument on, thus finding  out if there are any cases where the jurisdiction was "substantially supported" in a similar case.

Doing these things will certainly not guarantee that you get your legal costs reimbursed, but you can increase the likelihood of that happening. A little bit of homework could save you a lot of money!