Tuesday, April 22, 2014

April 22, 2014: Virginia Freedom of Information Act Advisory Council Met and Discussed HJ96 the Two and a Half Year Study on Current Exemptions Allowed for FOIA Requests

2014’s HJR96 directs the Virginia Freedom of Information Act (FOIA) Advisory Council to study the 100-170 current exemptions in Virginia Code over the next 2.5 years (completed by December 2016) to determine if some of the exemptions should  be eliminated or revised. 

Today (April 22, 2014) the VA FOIA Council held its first meeting of 2014 where they discussed the planned process and outline for HJR96 for 2014, 2015 and 2016. 

I attended today’s meeting my first ever. I learned a few points today that I did not know about when it comes to FOIA requests in VA and I also learned that most citizens expect the FOIA Council to assist them when they are having issues getting their requested information from the county, city or state departments like being the “FOIA Police”. That is NOT their role at all as I found out 2 years ago when I reached out to them with the denials I was receiving from the Virginia State Police. In the end it’s up to the citizens of Virginia to file and fund a court challenge in instances of FOIA denials, refusals or excessive fees. Most citizens do not have the knowledge, the time or the resources to force implementation of the FOIA laws but yet that is our current system and it doesn’t look like it will be changing anytime in the future. 

Finally I addressed the Council during the public comment portion of today’s meeting. 

Here is my statement: 

Council Members, 

I’m excited that HJ96 allows an opportunity for the Virginia FOIA Council to look into more than 100 exemptions and I would like to bring one of those exemptions to your attention today…….as it is NOT being applied consistently. 

Statute 2.2-3706(H) that was re-codified in July 2013 and it is now found at 2.2-3706(A)(2)(k) 

k. Records of the Sex Offender and Crimes Against Minors Registry maintained by the Department of State Police pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1, including information obtained from state, local, and regional officials, except to the extent that information is required to be posted on the Internet pursuant to § 9.1-913; and 

The statute states that the release of certain records can be categorized into three actions
1.       must be released
2.       may be released
3.       can not be released
……….leaving complete discretion in the hands of the Virginia State Police (VSP). 

Over the last 4 years I have made 4 separate FOIA requests for Registry data and except for my very first request, ALL have been denied. 

The most recent example I have to share with you is from October 2013… It was denied solely on the basis that the information may be disclosed by the custodian in his or her discretion. 
None of my FOIA requests have ever been for personal data such as:
§         Date of Birth
§         SSN
§         Phone numbers
§         Email addresses
§         Or vehicle registrations 

I believe this type of information should be denied in a FOIA request.  

My October 2013 request that was denied was significantly similar to a Longwood University research request that was fulfilled. 

I have copies of the data that I requested AND that the University Researchers request, along with my denial letter from the VSP for the Council members. 

My most recent FOIA submission stated I would accept the data grouped or sorted however the VSP liked, it was for the current Virginia Registrants:
1.       age
2.      sex
3.      race
4.      the number classified as Violent and Non-Violent
5.      the number who are unemployed
6.      the number listed as homeless or mobile (an address that is not a residence)
7.       the number who are “wanted” 

I knew and reminded the VSP that they recently supplied Longwood University Researchers for a study titled Neighborhood Tipping and Sorting Dynamics in Real Estate: Evidence from the Virginia Sex Offender Registry and they were given 10 years of data by the Virginia State Police.  

Including each offenders
1.       age
2.      sex
3.      race
4.      Violent or Non-Violent Status
5.      past addresses, including all move-in and move-out dates
6.      current address
7.       perpetrated crime  

These two FOIA requests were extremely similar (green) and if we’re looking at it apples to apples then at least a portion of my request should have been granted 

One can only conclude that no matter what registry data I submit to the VSP…..I will be denied. 

This must be because of a personal bias against me OR because of the inherent conflict of interest…….that the Virginia State Police is not only the manager and monitor of Virginia’s Registered Sex Offenders but the VSP Legislative Liaison’s actively lobby at the yearly General Assembly sessions to include more sexual crimes, longer registration and more restrictions. And in the years that I’ve found patrons to reform aspects of the Virginia Registry the Liaison’s have lobbied against the proposals, adamantly. 

Per the statute the VSP has been given the authority as the “gate-keeper” of ALL registry data along with the discretion to deem requestors as worthy or not.  

They have obliged the requests of those they view as “pro-registry” but have repeatedly denied those who would use the data to reform our registry….me. 

Similar or identical FOIA requests should not be cherry-picked and I hope the FOIA Council will consider a rewrite (of 2.2-3706(A)(2)(k) ) as the current exceptions allow the owner of the Registry data to apply it with prejudice. 

Double standards can not exist in an Open Government. 

Thank you.  
Just an FYI for readers: Over the last 6 Virginia General Assemblies I have personally dealt with 4 VSP Legislative Liaisons, there seems to be 1-2 assigned to each Committee. One of those Legislative Liaisons is a retired Major and a member of the current VA FOIA Council (he was in attendance today) and another current VSP L.L. was seated in the audience. 

Making a public statement pointing out the State Police aren’t applying a law consistently because I am a volunteer advocate when 2 members of the VSP are in the room especially one on the Council, isn’t for the fainthearted. 

Mary Devoy

Recent articles on FOIA or HJR96 for anyone interested: 
State’s FOIA law to get two-year review, March 19, 2014

Rhyne: Who makes the final decision? Based on what? March 19, 2014
FOIA and Open Government

Guest Column: FOIA is important to every citizen, March 17, 2014

Our view: A tighter, tougher FOIA, March 16, 2014

Sunday Q&A: Megan Rhyne of the Virginia Coalition for Open Government, March 16, 2014
PolitiFact: There’s sunshine and darkness in Virginia’s open government laws, March 16, 2014