Sunshine law gets dimmer for Virginians

Saturday, June 16, 2001

Government, be it local, state or federal, should be responsive to those it governs. After all, the entire concept on which we have based our system of government is predicated on the idea that a handful of officials elected by the general population will act as their representatives and base their words and deeds on what is in the best interest of those who have elected them.

Another tenet of open government can be summed up in a few words: “Maximum disclosure with minimum delay.” The Freedom of Information Act and other “sunshine laws” are designed to keep open government open, facilitate the flow of information, limit secrecy and discourage abuses of executive
session or secret meetings.

Virginia’s FOIA, the people whom it protects, and freedom of the press guaranteed by the First Amendment, will soon suffer a damaging blow unless a serious challenge is mounted — that is, if it is not already too late. In a mind-boggling decision handed down by the 19th Circuit Court of Virginia one year ago and upheld by the Virginia Supreme Court this week, it was ruled that commonwealth’s attorneys are exempt from certain provisions of the state’s FOIA. In its June, 2000 ruling, the circuit court decided that, since a commonwealth¹s attorney is a “constitutional officer” and not a “public body,” they are in no way bound by the spirit of the FOIA. The fact that they are elected by and their salary paid by the public in no way
mitigates the decision to exempt them from the tenets of the FOIA and from penalties for violating the FOIA.

Specifically, the ruling states that prosecutors can withhold police reports from defendants in criminal cases and provide summaries rather than investigators’ original accounts. The rationale used to defend this decision was that releasing complete documents related to criminal investigations instead of summaries or general descriptions of criminal activity would discourage witnesses from cooperating, because their identities would be revealed.

As disturbing as the state Supreme Court¹s decision is, there is a silver lining: According to a report by The Associated Press, Virginia’s FOIA still applies to police officers, even if it does not apply to the commonwealth’s attorneys. Justice Lawrence L. Koontz Jr. also wrote in his opinion that the Supreme Court’s decision only applied to requests to prosecutors in ongoing cases and that it should not be applied to other state officials. That good news is mitigated, however, by the crack the Supreme Court placed in the
FOIA with its precedent-setting ruling: How long will it be before other elected officials designated “constitutional officers” in Virginia — i.e., treasurers, sheriffs, commissioners of the revenue, clerks of court, etc., find ways to designate themselves exempt from the state’s FOIA?

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