An Analysis of Virginia's Freedom of Information Act
AN ANALYSIS OF VIRGINIA'S FREEDOM OF INFORMATION ACT
The Law Division of the
1997 AEJMC Convention Call for Papers
Graduate Student at American University
3906 47th Street, N.W.
Washington, D.C. 20016
The ability of a people to receive information from their government is a
cornerstone of democracy, for public records are the raw material of
government. Access to this raw material ensures that citizens are
well-informed and that government officials are accountable for their actions.
As one leading commentator has noted:
Public business is the public's business. The people have the right to
know. Freedom of information is their just heritage. Without that the
of a democracy have but changed their kings.
In a democracy, secrecy serves only to buffer rule-makers and rule-enforcers
from their clients, the electorate. Absent any real oversight, secrecy breeds
paternalism and, ultimately, corruption. The damage this poison can cause a
democracy cannot be overstated, for if secrecy is "the occupational disease of
government, the strength of the medicine prescribed is a fair test of the
vitality of a democracy."
Much of the more meaningful information held by the government -- information
that affects citizens most directly, such as land use, road construction and
school curricula -- is held by local and state officials, not the federal
government. The best (and sometimes the only) tools available to access such
information are state public record laws. Neither the common law, the First
Amendment, nor the federal Freedom of Information Act provide a right of access
to public documents in the custody of state or local officials.
At the state and local level, however, government attitudes and resources can
combine to create great barriers to those who seek access to government-held
records. The result is that many state officials routinely flout public access
laws, and government secrecy is "widespread and pervasive" at the local
In the Commonwealth of Virginia, application of the state's access law
historically has been among the more conservative in the nation. Since the
1967 adoption of the Virginia Freedom of Information Act (VFOIA), state and
local officials have waged a constant and often bitter battle with journalists,
commercial interests and citizen activists over access to public records. Each
year, the General Assembly mocks the principle of the VFOIA, enacting exemption
after exemption -- today there are over 100 loopholes in the law. Meanwhile,
many Virginia judges issue rulings that merely "pay lip service to the principle
of open government."  Despite recent efforts to liberalize the law and to
educate officials, "institutional resistance" to VFOIA remains a serious
Most [Virginia] government officials will tell you they believe solidly
in the public's right to know, but they don't ... There is a general
especially among local government officials, that they know best, that they
should be the ones to decide what the public knows.
The most recent and grand display of this attitude came in 1994, when senior
Virginia officials tried to conceal the true state costs of the proposed $650
million Disney America project. Those efforts were exposed after an
environmental group used the VFOIA to force release of some 5,000 state
documents related to the project. Days after a judge ordered the disclosure of
the embarrassing documents, Disney pulled out of the deal. The Disney documents
served as a chilling reminder that an "arrogance of power that shouldn't
exist" indeed remains prevalent in the Old Dominion. One such document, for
instance, revealed attempts by the state's Secretary of Commerce and Trade to
deceive the public:
... This is critical information which we would not like to have
circulated publicly because it will substantiate the claims of opponents
Disney has not been forthcoming."
This paper examines the origins, evolution and application of the Virginia
Freedom of Information Act. It focuses on access to records; the other equally
important side of the VFOIA, the state's open meeting law, is addressed only in
regards to case law on enforcement of the Act. Specifically, section II traces
the general development of state public record laws. Section III lays out the
language of the statute itself and compares it to Florida's public access law.
Section IV examines recent developments in the VFOIA, including case law and
important amendments enacted by the General Assembly since 1995. Section V
traces enforcement of the act, the lone VFOIA area into which the state supreme
court has ventured with any fortitude. Section VI offers conclusions.
The paper concludes that too many Virginia officials ignore the VFOIA's policy
statement and regulations, which urge liberal access to records, except in
narrow and specific situations. While minor, progressive improvements have come
in recent years, the problem is so pervasive -- attitudes are so ingrained --
that a dramatic overhaul of the law is the only likely remedy. A special
General Assembly committee is slated to study the law in the summer of 1997.
Hopefully, it will provide a good vehicle for change.
Public record access laws play a vital role in American government. They
encourage democratic values, increase the free flow of information and instill
public confidence in government. They also provide an important check on
elected and unelected public officials -- often exposing waste and abuses of
authority, the results of which can lead to improvements in government policies
and procedures. But public access laws also have negative affects on government
efficiency. They can cause some officials to act too cautiously, worried that
every decision will be scrutinized mercilessly by the press, the public and
political opponents. Compliance with the law also can be time-consuming and
costly -- the federal government spends about $100 million annually to research
and fill Freedom of Information requests.
Although a handful of states offered early statutory access to public records
-- Wisconsin residents enjoyed the right by 1849 -- most states relied on
the common law, developed from English law. Because the British government
and its subjects rarely found themselves at odds over the issue, the English
courts declared that no common law right existed to inspect government records
-- except in cases where the records were sought for use in litigation. The
litigation exception evolved into a "personal interest" concept, which required
a citizen to show good cause why a document ought to be released to him. The
theory quickly found its way into American common law in the nineteenth
As time wore on, the rule evolved so that access was granted not only to
interested parties, but to those acting on the public's behalf as well. One
of the first shifts came in an 1879 New Jersey court ruling. In State ex rel.
Ferry v. Williams, the court permitted a disinterested party to review letters
of recommendations submitted with an application for a liquor license (records,
by the way, which are to this day still secret in Virginia). The court held
that one "who asserts no interest... except that common interest which every
citizen has in the enforcement of the laws" ought to have access to the
records. In a landmark case in Vermont in 1906, the courts granted a
taxpayer access to the records of a state audit, "in order that reforms might be
instituted." Near the turn-of-the-century, title companies and other
businesses reliant on easy access to government records also pushed the courts
to require disclosure of the documents.
By 1940, public record access laws existed in only 12 states, and even these
were vaguely worded statutes that often "lacked any interpretive definitions or
guidelines." In 1950, one commentator summed up the common law rule on
access to public documents this way:
A person may inspect public records in which he has an interest or make
copies of memoranda thereof when necessity for inspection is shown and the
purpose does not seem improper, and where the disclosure would not be
detrimental to the public interest.
The enactment in 1966 of the federal Freedom of Information Act (FOIA), as
well as revelations of government secrecy during Watergate and the Vietnam War,
spurred many state governments to enact their own FOIA laws. (The federal FOIA
act provides that "any person" has a legally enforceable right to any "agency
record" not covered under one of nine exemptions.) And yet thirty years
later, even though public record laws exist on the books of every state, such
laws often are ignored by "foot-dragging" and "hard-headed" state officials.
Some states, including Virginia, still restrict access only to their residents
and to journalists.
Meanwhile, enforcement of state access laws remains spotty. In some states,
enforcement is strong, but in many others it is inadequate or non-existent -- or
hindered by conflicts of interests between prosecutors and local officials.
In a recent poll, 67 percent of state prosecutors said they had never initiated
an open meetings law investigation. Many states discourage FOIA suits
because they do not award court costs or attorney fees to plaintiffs who prevail
over the government. Thus, some individuals, small interest groups and tiny
news organizations are hesitant to litigate FOIA issues against local and state
agencies with in-house legal resources.
At some point in the process, our governmental attorneys simply say 'sue
us,' and they know that more often than not, the complaint will go
On a more positive note, most states, including Virginia, agree that
electronic records should be treated the same as paper records for the purposes
of public access. (The federal government adopted a similar statute in
1996.) In a recent electronic records case, one jurist said:
The basic tenet ... is that a person does come -- like a serf -- hat in
hand, seeking permission of the lord to have access to public records.
to public records is a matter of right.
III. VIRGINIA'S ACT
"The evil it seeks to cure is secrecy in government."
The General Assembly intended for the VFOIA to ensure "ready access to records
in the custody of public officials." The statute's policy statement clearly
lays out the intent of the law -- that all records held by the Commonwealth are
presumed public and open for inspection, unless and until a public official can
prove otherwise, by citing a specific exemption under the law.
This chapter shall be liberally construed to promote an increased
awareness by all persons of governmental activities and afford every
opportunity to citizens to witness the operations of government. Any
exception or exemption from applicability shall be narrowly construed in
that no thing which should be public may be hidden from any person.
Specifically, the language of the VFOIA provides that all official records be
open for inspection and copying during regular office hours by "any citizen of
the Commonwealth" or any journalist whose medium is broadcast or circulated in
Virginia. A request under VFOIA must be made with "reasonable specificity,"
but need not make a direct reference to the law, nor must it be in writing.
The custodian of a requested record must respond within five working days.
In a response, the custodian may: (1) provide the record requested, (2) refuse
to release the record and provide a written explanation, making specific
reference to the applicable code section which makes that record exempt, (3)
release only that portion of the record not exempted by the law and provide a
written explanation that refers to the specific code exemption cited in
withholding the redacted information, or (4) inform the requester that "it is
practically impossible to provide the requested records or to determine whether
they are available within the five-day period," and beg an additional seven
working days to fill the request. If an agency fails to make any response
at all in the time permitted, the request is simply considered denied. While
such failure to respond is considered a technical violation of the law, the
public agency does not lose its standing to challenge the validity of the
"Reasonable" fees may be charged for copying, computer time and search time,
but only for actual costs incurred. If an estimated charge exceeds $200, an
agency may require a requester to agree to payment before the request is
filled. Beginning July 1, 1997, every state agency will be required to
compile and annually update an index of computer databases. (The new index
rule will be discussed in depth later in this paper.) If a requested record
does not exist, a state agency is under no obligation to prepare or create
one. However, the law states that agencies must "make reasonable efforts to
reach an agreement" with persons making VFOIA requests.
When first enacted in 1968, the VFOIA contained five sections detailing
approximately one dozen exemptions to the open records law. Today, 66 sections
list more than 100 specific exemptions to the VFOIA, situations where a
custodian of records, unless expressly prohibited by law, may use discretion to
decide whether records may be disclosed. The more commonly cited exemptions
include matters in litigation or under investigation, applications for
licensure, confidential contract cost estimates, vendor proprietary software,
confidential proprietary records submitted for economic development or tourism
purposes, appraisals and cost estimates related to real estate sales, and
records that fall under the attorney-client privilege. Another commonly
cited exemption is No. 4 -- the governor's working papers exemption. It shields
many of the records held by the governor, as well as those held by mayors and
board chairs across the state. While there is little case law on the subject,
some government officials claim the exemption includes intra-agency
communications, if they are made to seek information for the chief executive.
Such an interpretation makes exemption No. 4 potentially the broadest in the
Other exemptions protect from public view a potpourri of records. They
include, but are not limited to: medical records, tax returns, certain state
fishery records, scholastic records, state personnel records, subscription lists
to Virginia Wildlife Magazine, utility records, campus police reports,
discussion of the awarding of honorary degrees, and, in certain circumstances,
records relating to hazardous waste sites or to location of rare, threatened or
Throughout the years, the VFOIA has been amended to clarify access: to require
that minutes be recorded at all meetings (1973); to strictly limit access to
prisoner records (1975); to require residents who request regular notice of
meetings to supply public bodies with self-addressed, stamped envelopes (1976,
repealed in 1989); to require access to records relating to the salaries of
public officials who earn more than $10,000 annually (1978); to deny access to
library records that might reveal material borrowed by individuals (1979); to
deny access to personal property tax returns (1983); to permit access to
contracts between a public official and a public body (1986); to deny access to
records that "would jeopardize the security of any correctional facility"
D. Appeals and enforcement
Appeals and enforcement of the VFOIA are left to the courts. Local district or
circuit courts hear appeals of denials made by local governments; appeals of
state denials are heard by either the General District or Circuit Court of the
City of Richmond. Hearings must be held within seven days of a filing for a
writ of mandamus. If a court finds a violation of the act, costs and attorney's
fees may be awarded. Willful and knowing violations by public officials are
subject to fines of up to $1,000.
E. Tracking Use
Unlike federal law, which requires agencies to track public record
requests, Virginia makes no provision for tracing VFOIA use or compliance.
Thus, most state agencies and counties do not keep even informal tallies of
VFOIA requests, and no reliable data on VFOIA use -- or government
compliance -- is known to exist.
Still, informal surveys indicate that approximately 95 percent of all VFOIA
requests are related to litigation, commercial interests or inquiries from
inmates. One commercial requester, for example, used VFOIA to regularly request
from police the names of all persons arrested for drunk driving; she then sold
the list to local attorneys. Another commercial requester used computer
tapes of municipal tax records to pay the property taxes of its mortgage
lenders. Less than 5 percent of all VFOIA requests come from the news
media, citizen activists and public interest groups. In Fairfax County, for
example, only 63 of the estimated 2,500 requests received in 1996 came from
F. Comparison to Florida's FOI laws
The following section examines the similarities and differences between public
access laws in Virginia and those in Florida, a state largely acknowledged
to have the "the most expansive open government law in the country." The
Florida law "unequivocally" states: "It is the policy of this state that all
state, county and municipal records shall at all times be open for a personal
inspection by any person."
Generally, Florida's open records law is much more liberal than Virginia's, but
the two state statutes do have many similarities. In both states, a request may
be made orally; the intent of a requester is irrelevant; any record that may
inspected may also be copied; non-governmental agencies which operate
principally through state funding and act on behalf of the state are subject to
public access laws; contracts with government agencies are public records; and
records relating to eminent domain proceedings may be kept confidential.
But there are plenty of significant differences between the two statutes.
In Florida, public document requests can come from any person; in Virginia, they
may come only from citizens or journalists. In Florida, judges must follow the
statute strictly; in Virginia, the courts have great discretion to interpret the
law and may exempt records for public policy reasons. Florida law liberally
awards attorney fees and court costs whenever a court determines that an agency
unlawfully refused access; Virginia courts award costs and fees only for
"knowing and willful" violations of the law.
In addition, the following specific records are usually considered public in
Florida, but confidential in Virginia: routine records of the governor and state
legislature; routine mail sent to public officials; arrest information disclosed
to an arrestee; victim names (excluding cases of child abuse or rape); 911
emergency tapes; compilations of criminal histories; customer information from
public utilities; and the entire personnel file of a public employee (excluding
The two states also differ on the following important point: Florida law allows
for less interpretation by an official who holds a record. In certain
situations Florida law may require release of a record, while Virginia law may
leave the decision to the discretion of a state official. For example, many
Florida bank records -- excluding personal account information -- are public.
But in Virginia, all bank records may be withheld "if, in the opinion of the
Commissioner of Financial Institutions, disclosure could endanger the safety and
soundness of the institution." In practice, Virginia officials rarely
release any bank records -- no matter how dated. In a recent case, relying on
an opinion from the state attorney general, Virginia officials denied a request
to review bank records that were more than fifty years old.
Thus, while many of Virginia's public record laws mirror those found in the
nation's most liberal statute, there are dozens of differences. Each one poses
a challenge to the Old Dominion, for each calls into question the rationale
behind efforts to restrict access to government-held documents in Virginia.
IV. RECENT DEVELOPMENTS REGARDING THE VFOIA
This section analyzes several recent and significant developments to the VFOIA.
The first part examines two important Virginia Supreme Court rulings in the
1990s, Taylor v. Worrell Enterprises, Inc. and Wall v. Fairfax Co. School
Board. The second part explores the controversial 1996 amendment to the
VFOIA that requires state agencies to begin compiling indices of their computer
data. The new rule -- which takes affect July 1, 1997 -- has created a great
deal of resistance by some state officials. The third part of this section
analyzes the General Assembly's 1997 amendments to the VFOIA, including public
on-line access and inmate access to state records.
A. The Worrell and Wall Decisions
The Virginia Supreme Court's opinion in the 1991 case Taylor v. Worrell
Enterprises demonstrates its reluctance to apply the VFOIA to the governor's
office, as well as a belief that "a policy of openness does not override the
need for confidentiality in every circumstance." In addition, a plurality
of the state court suggested that the legislature's application of the VFOIA to
the governor probably violates the state's constitution.
In Worrell, The Charlottesville Daily Progress sued for disclosure after the
governor's office claimed its telephone records were exempt under the VFOIA's
"working papers" exemption. The high court ruled 4-3 in favor of the governor.
It said "compelled release of this information could have a chilling effect on
the Governor's use of the telephone for conducting the Commonwealth's
The Worrell ruling might be viewed as a narrow ruling on a specific VFOIA
request, were it not for the dicta offered by three majority justices. This
offered its interpretation of the General Assembly's intent in drafting the
VFOIA, and also threw in a potential constitutional firecracker -- wondering
aloud whether applying the VFOIA to the governor's office violates the
separation of powers doctrine. In examining the General Assembly's intent, the
plurality noted that while it "sought to ensure public access to government
records and meetings to avoid an atmosphere of secrecy in the conduct of
government affairs..." the Assembly did not "consider the policy absolute."
Indeed, the plurality noted, the Assembly had enacted scores of exemptions.
Taken together, these exemptions reflect the General Assembly's
determination that the policy of openness does not override the need for
confidentiality in every circumstance, that the best interests of the
Commonwealth may require that certain government records and activities not
subject to compelled disclosure.
In 1996, the Wall case drew the attention not only of the Virginia Supreme
Court, but also the Virginia chapter of the American Civil Liberties Union, the
Student Press Law Center and the Reporter's Committee for Freedom of the
Press. Backed by a sophisticated legal team, Wall presented a case that
could have allowed the court to make perhaps it most liberal interpretation of
the VFOIA to date. But the court unanimously declined, and instead reaffirmed
its strict constructionist view.
Plaintiff Lucas E. Wall, editor of the Centreville Sentinel, the student
newspaper at Centreville High School, sued the school district when it refused
to release a tally from a student government election. School officials
maintained that under the VFOIA the vote totals were "scholastic records" and
therefore releasable only at the discretion of the school district. In refusing
to release the records, the school district cited its policy of protecting "the
vanquished" in student elections by reporting only the names of the victors.
Officials contended that "disclosing the results would inhibit students from
running for office out of fear of embarrassment." Wall argued that the
tallies were similar to boxscores from interscholastic athletic contests, which
are routinely reported in the media. But the trial court agreed with the school
board, that the records were "scholastic," and akin to report cards or
The Supreme Court affirmed, holding that school officials properly interpreted
the statute, which exempts, at the discretion of the custodian, "scholastic
records ... containing information concerning identifiable individuals."
The court said such language is "clear and unambiguous."
The Wall case may have set a dangerous precedent. It may encourage government
officials to extend their veil of secrecy to situations where those who
voluntary participate in public affairs (including public officials) are
embarrassed. As an editorial which appeared last year suggested, Virginia
officials need little encouragement to circumvent state public record laws.
A favorite exercise is to contemplate and attempt absurd stretches of the
law's "exemptions" to cover discussions and/or results that might embarrass
The Wall ruling is likely to perpetuate this attitude.
B. The 1996 computerized index amendment
In 1996, the General Assembly adopted a significant amendment to the VFOIA,
requiring state agencies to compile and annually update an index of computer
databases created after July 1, 1997. Since at least 1974, Virginia law has
treated electronic records as "official records," or records subject to the
VFOIA. But the new rule is perhaps the most serious pro-disclosure
amendment in two decades, for it places on state agencies an affirmative duty to
create and maintain records solely to comply with the VFOIA.
Yet while organizations such as the Virginia Press Association (VPA) praise the
new requirement, state computer officials at the Virginia Department of
Information Technology (VDIT) complain the amendment is overly broad and
needlessly burdensome. Debate over the amendment provides unusual insight into
the positions and arguments presented by the two sides. At the least, it
demonstrates a concrete example of the reluctance by state officials to provide
information to the public -- even after an amendment becomes law.
The 1996 amendment requires state agencies to include in each index: (1) a list
of data fields, (2) a description of the format or record of layout, (3) the
date last updated, (4) a list of any data fields to which public access is
restricted, (5) a description of each format in which the database can be copied
or reproduced using the public body's computer facilities, and (6) a schedule of
fees for the production of copies in available form.
Following passage of the amendment, the General Assembly directed the VDIT to
prepare a study analyzing the feasibility of and costs associated with the new
requirements. However, the agency's final report did not fulfill the
General Assembly's mandate to pursue costs and feasibility. Instead, the VDIT
issued an almost paternalistic study that harshly criticized the new law for
creating new burdens on government officials. The report also raised new
concerns -- questions already clearly settled by the current VFOIA law -- over
who should have access to official records, the intent of a requester, and
whether members of the public should be permitted to integrate two sets of
separate state computer files for their own uses. The report concluded that
while implementation of the law is "feasible," it remains to be seen "...whether
it is suitable and logical to do so..." An outraged state press association
said the VDIT report "proceeds from a 'can't do,' rather than a 'can do,'
What follows is an examination of four specific VDIT concerns, and reaction
from the VPA. The attitudes expressed in these four examples provide evidence
that resistance to the spirit of the VFOIA by state officials remains strong.
1. VDIT officials argue the new amendment creates a burden most Virginia
residents will not appreciate because most are computer illiterate.
Specifically, the VDIT report targets the requirement at the very heart of the
law -- that each new index include the six categories (data fields, format, last
date updated, restricted fields, reproduction techniques, and fees). The state
computer officials said disclosing such information would serve to confuse
rather than to help most requesters.
Much of the information called for in the above six categories is highly
technical and would be difficult for the general public to understand. It
be more appropriate to change this requirement to reflect a brief narrative
description of the database and its contents as opposed to the current
This argument is patently paternalistic, and only serves the government's
interests. The whole point of the law is to provide an index that lets the
public know what the Commonwealth has in its computer files. To that end, these
six basic categories provide a citizen with the proper parameters for making a
2. VDIT officials claim the law is overbroad, and will force state officials to
overindex. For example, they suggest that the term "database" be clarified
since "this broad definition could be construed as almost any collection of
data, from clip art collections to desk organizers, with potentially burdensome
implications for complying bodies." The VPA, in its response, acknowledged
that practical considerations may require some fine-tuning of the law, but it
To simply say that the term "computer database" is capable, under a broad
and unlimited construction, of encompassing all sorts of matters, is to
responsibility from grappling with practical application of the new
3. VDIT officials worry that the new law may make it easier for hackers to
enter the Commonwealth's computer files. "Releasing indexed descriptions of
underlying electronic file structures or granting, perhaps eventually, on-line
access to databases raises the issue of security risks... There is merit in such
concerns." The VPA's reply: Nonsense. The law does not refer to on-line
databases, nor does it require "disclosure of descriptions of underlying
electronic file structures necessary for the manipulation of computer data
4. Finally, VDIT officials said they are concerned about the implications of
"data mining," the practice of integrating two or more unrelated data sets to
discover correlation's between the sets. Combining two sets of data that
were never "authorized" (or meant) to be merged, the VDIT report said, can
create "new data that the government did not originally intend to create or make
available." As an example, the report suggests that public state data on
landfill locations could be cross-referenced with public state health data to
"yield a correlation of risk to people living near landfills." To
journalists, the example showcases the advantages of computer-assisted
reporting. But to VDIT officials, it apparently is a misuse of state
records. Alarmed by this possibility, the VDIT officials suggest that such use
be discouraged by scoping for the requester's intent.
It is not the process itself which poses the risk. It is the intended use
of the resulting product that should be examined. (emphasis original).
The VDIT's conclusions in this regard are misleading and frightening, and
probably violate the spirit of the VFOIA. First, for years journalists in
Virginia and other states have had and used the ability to manipulate two sets
of computer data files to report and write compelling stories, ones that would
be difficult, if not impossible, to write without the aid of computers._
Second, the Virginia Supreme Court, in Associated Tax Service, Inc. v.
Fitzpatrick, clearly established the notion that the intent of a VFOIA
requester is irrelevant to consideration of the request. Not surprisingly, the
VPA also found the VDIT "data mining" concern disturbing:
The concern over data mining reflects a mindset completely at odds with
Virginia's tradition of broad democratic participation in an open
and its long-standing refusal to ferret out the motives of citizens who
information from their government... The view that this process should be
discouraged by Virginia policy makers is directly at odds with Virginia's
tradition that an individual's use of information is not the government's
business, and contrary to the reality of an ever expanding capacity for
individuals and businesses to use information in new and creative
Thus, Virginia's new computer indexing requirement provides not only a good
look at a recent state effort to improve its public access laws, but also a fine
glimpse at the existing attitudes of some of the so-called public servants whose
job it is to comply with these laws.
C. 1997 Amendments to VFOIA.
In 1997, the General Assembly took two steps forward and one step backward on
the public access front. While it leaped onto the internet bandwagon to provide
unparalleled access to some government documents, it also an unprecedented
restriction -- denying access to inmates.
According to open government advocates, the 1997 General Assembly, "however
hesitant, took big strides into the age of electronic information." The
General Assembly went on-line for the first time, offering free bill-tracking
and access to the state code, and the state Supreme Court and local court clerks
were given the authority to provide access to court rulings and other public
information. Another new law also enacted in 1997 prohibits state or
private entities from hoarding public information through exclusive contracts
and then reselling it to the public at a premium. The intent of each of these
laws is to ensure equal access to any information held by the government.
Yet while it took these significant steps in entering the electronic age, the
General Assembly also enacted a provision prohibiting inmates from making VFOIA
requests, unless the request is directly related to a prisoner's case.
Proponents of the measure argued that inmates had created frivolous requests
designed to keep already overburdened state employees busy filling "laundry
lists of demands for unnecessary and intrusive information." Opponents
feared the new law might violate prisoners' rights by denying them access to
otherwise public information; a better solution, one senator said, was to simply
charge inmates for the information.
Inmate requests are "a harassment tool," according to prison officials, but by
law must be filled "even though there appears no legitimate purpose associated
with the request." State prison officials said they could not provide
specific statistics on VFOIA requests by prisoners. Instead, they supplied
sample requests by inmates:
- organizational chart with names and phone numbers of department
- Placement of armed corrections officers within institutional housing.
- Numbers of hours overtime of corrections officers... during years '92,
- As of 6-30-92, 9-30-92, 12-31-92... How many state inmates awaiting
transfer to the system?
According to their own internal documents, prison officials hope the new law
will allow them to routinely deny all inmate requests for records:
The purpose of the law is to narrow the right to access information under
FOIA to those persons in full possession of their civil rights. Persons who
have had their civil rights revoked, specifically persons incarcerated by
local, state or federal authorities could be denied information normally
available under FOIA. Such person would have to avail themselves of counsel
order to pursue a request under FOIA. Under this scheme there would be at
least a minimum check on the legitimacy of a FOIA request made by inmates
others under the control of the judicial system.
Although the new law does not take affect until July 1, 1997, the state already
is using the same legal reasoning to refuse to fill at least one prisoner VFOIA
request. In January 1997, the state denied an inmate's record request, arguing
that because he is a convicted felon and has "forfeited the right to vote and
the right to hold public offices of honor, trust, profit and emolument... and
civil rights... he is not a citizen" within the meaning of the VFOIA.
Under the VFOIA, the state must honor only record requests that come from
"citizens of the Commonwealth." A decision in the case is pending.
The General Assembly, thus, had a better than average year in 1997 supporting
the right of access to public information in Virginia. Yet while it appeared
eager to provide internet access to information, the information it authorized
to be placed on the World Wide Web was already clearly public. Further, the
VFOIA amendment that limits inmate access sends the wrong message to government
bureaucrats -- that if they feel overburdened by "unnecessary and intrusive"
requests for information, they need merely petition the General Assembly for
The remedy's the thing wherein I'll catch the conscience of the king.
Laws which are weakly enforced lose their vitality. Administrative laws, such
as freedom of information acts, are especially susceptible because they are
largely based on the supposition that public officials will act in good faith
and release disclosable documents. Absent this good faith, enforcement remains
the only remedy to ensure compliance with the law. In Virginia, the courts are
the instrument of enforcement. Thus, case law controls the enforcement
procedures and application of the VFOIA.
Virginia courts are not loathe to exercise writs of mandamus, ordering public
officials to comply with a court's interpretation of the law -- they did so as
early as 1799, in Smith v. Dyer. But while the Virginia Supreme Court
recognizes the discretion of lower courts to decide remedies in VFOIA cases, the
lower courts have been reluctant, at least until recently, to invoke this power
or to levy civil fines. At least one legal commentator writing in the mid-1980s
noted that the VFOIA's enforcement provisions and the court's decisions
"frustrate the policy underlying the Act." The following section analyzes
the development of the Virginia Supreme Court's opinions and attitudes on
enforcing the VFOIA. The first part examines two cases in which the court
considered the timing of a VFOIA suit. The second, more detailed section,
traces the evolution of the standards the court uses in examining VFOIA cases.
Although the VFOIA statute provides that an individual may seek redress in the
form a writ from the courts, the Virginia Supreme Court has left unsettled the
issue of when that relief may be sought. In 1991 and 1992, the state Supreme
Court grappled with two cases in which the issue was the timing of a VFOIA
appeal. The court's opinions, however, seem contradictory.
In the first case, Hale v. Washington County School Board, Hale sued the
board over an illegal meeting at which minutes were not kept. The school board
argued that suit was premature, that Hale must first appeal before the school
board, before he may seek a remedy from the courts. But the court agreed with
Hale, ruling that the law did not require a formal VFOIA request where the
relief sought did not involve production of records, or where a request would be
fruitless (here, of course, the request was fruitless because the point was that
the records did not exist).
A year later, however, in the second case, the court seemed to take the
opposite view. In Gannon v. State Corp. Comm., Gannon requested
information from the SCC, which denied his request. Gannon filed suit under the
VFOIA immediately. But the Supreme Court declined to rule on the merits of his
suit, declaring it premature because Gannon had failed to follow the SCC's
administrative procedures for appealing VFOIA requests. The Hale and Gannon
decisions, then, leave unresolved the critical question of when an individual
can challenge a record request denial in the courts.
B. Standard of Proof
This section lays out the evolution of the court's rationales and standards in
examining enforcement of the VFOIA. In the early years, the court generally
gave public officials the benefit of the doubt -- even after some admitted
breaking the law. In recent years, however, the court has become more receptive
to demands from plaintiffs for relief against public officials who violate the
1. "Good Cause"
Under the original VFOIA language, enacted in 1968, a plaintiff who appealed an
agency's decision not to release a record had to show "good cause" why an
injunction or mandamus ought to be granted. This gave Virginia judges
great discretion to approve or deny release of documents. In one of its first
detailed looks at the enforcement provisions of the VFOIA, the state Supreme
Court in 1976 declined to issue an injunction enjoining a city council from
holding executive sessions. The court, in WTAR Radio-TV Corp. v. City
Council, found that while the Virginia Beach City Council met illegally at
least twice, in clear violation of the VFOIA, WTAR failed to present enough
evidence -- to "show good cause" -- to demonstrate that the council would break
the law again in the future. WTAR argued that the VFOIA was toothless without a
"method of forcing public bodies to comply with it." But the court said
public officials must in all cases be given the benefit of the doubt -- that it
must be presumed they intend to abide by the law.
Sometimes, regrettably, the public trust is betrayed and the office
dishonored. But the presumption itself survives, as it must, for our system
government could hardly function if the law were to presume that all public
officials are scoundrels deserving continuing supervision by judicial
The court did not offer a "good cause" threshold for future petitioners, but it
did suggest that the matter was better left to the General Assembly.
2. "Reasonable Specificity"
Indeed, that same month, the General Assembly amended the VFOIA to "clarify the
circumstances in which a court should issue an injunction." The new rule
made it easier for plaintiffs to seek relief in three ways. First, it allowed
them to state "with reasonable specificity" -- as opposed to showing "good
cause" -- the relief sought, relaxing their burden considerably. Second, it
encouraged the courts to issue injunctions after only a single violation of the
VFOIA, and to levy fines of up to $500 for knowing and willful violations.
Third, it gave courts the power to award litigation costs and fees to plaintiffs
who prevailed against the government.
The new rules' first tests came in 1982, in two companion cases -- Marsh v.
Richmond Newspapers and Nagoette v. King George County. In each
ruling, however, the Virginia Supreme Court declined the opportunity to affirm
the spirit of the General Assembly's 1976 VFOIA amendments. In each case, the
court ruled that the behavior of the public officials involved -- each
participated in an illegal, closed meeting -- did not require either injunctions
or fines. In its Marsh ruling, the court noted that the Assembly's 1976
amendment "reversed the presumption" that controlled its WTAR decision -- "that
a public official will obey the law." Nonetheless, it struck down the
trial court's injunction, ruling that "the granting of such extraordinary relief
is still predicated on the probability that future violations will occur."
In Nageotte, the court said that if violations are made in good faith and
"insubstantial," they do not justify injunctive relief, fines or court
One commentator, writing two years after the Marsh and Nageotte decisions,
noted that the court's refusal to act "after minor violations may encourage
defendants to violate the Act in more substantial ways in the future." The
same commentator lamented that the "good faith" loophole established by the
courts "frustrates" the purpose of the law because it fails to ensure public
access to information. "Whether a defendant violates the Act in good faith or
bad faith, the same harm results to the public." The standards established
in Marsh and Nageotte lasted well into the mid-1990s. As late as 1993, a
circuit court judge ruled that while two public officials clearly violated the
VFOIA, they did so in good faith, and that therefore sanctions in the case were
In 1994, the Virginia Supreme Court issued its most pro-disclosure,
pro-enforcement ruling to date. In R.F. & P. Corp. v. Little, the court
established a stronger evidentiary standard for proof of willful and knowing
violation of the VFOIA, and affirmed a civil fine against a public official and
the award of substantial attorney fees to the plaintiff. Little had sued, among
others, the Virginia Retirement System and its trustees (including chairman
Jacqueline G. Epps) for violations of the VFOIA, seeking a writ to prevent
subsequent illegal meetings.
In assessing the trial court's contention that Epps "willfully and knowingly"
violated the VFOIA, the Supreme Court first considered the applicable standard
of proof. On this issue, it noted the statute is silent. The trial court
had used the standard of "preponderance of the evidence." On appeal, Epps
argued that the higher standard of "clear and convincing" was more appropriate
in this case because (1) a fine under the VFOIA "can have a significant impact
on a defendant's reputation," (2) the statute requires a "knowing and willful"
violation, rather than simply a negligent violation, (3) "the law is punitive in
nature and must therefore be strictly construed." She also argued that the
same evidentiary standard that applies to attorney misconduct proceedings --
"clear and convincing" -- ought to apply to the VFOIA.
But the court upheld the "preponderance" standard. It noted that "as a general
rule, civil litigants are assigned the burden of proving their cases by a
preponderance of the evidence." Further, the court noted that while most
state statutes which impose civil fines are silent on the issue, several that do
set a standard (including a few that impose penalties on public officials)
require only a "preponderance of the evidence." The "clear and convincing"
standard is left to cases of equity, such as fraud and misrepresentation. In
some of its strongest pro-VFOIA language to date, the court said:
If this Court were to apply a standard of proof not specified by these
statutes, and higher than that imposed in the vast majority of civil cases,
would undermine the very purpose of these enactments.
Finally, the court rejected arguments that a lowered evidentiary threshold might
inadvertently snare officials who violate the law in good faith. It said that
the law's strict construction maintains a "safeguard" that still requires that
violations be made "willfully and knowingly."
The bar being thus set at the "preponderance" level, the court found that Epps,
a former assistant state attorney general, "willfully and knowingly" violated
the VFOIA. It affirmed the trial court's fine of $250 and award of $133,170.55
in attorneys fees.
Conceptually, Virginia has a good public records law -- it states that
exemptions should be construed narrowly and access construed broadly. But in
practice the opposite often is true: exemptions are viewed broadly, and access
is viewed narrowly. Such an interpretation encourages officials to follow
their instincts -- to try to withhold information, rather than disclose it.
This attitude is reinforced by state judges who worry that stricter enforcement
of the VFOIA might unfairly penalize state employees who act in good faith.
Some of the more modern acts by state and local officials demonstrate that such
an attitude on public access is not ancient history. As little as ten years
ago, one city refused access to audio recordings of its public meetings -- and a
judge upheld its actions. Only nine years ago, the state Attorney General
finally convinced police departments across the Commonwealth to begin routinely
releasing the "mug shots" of individuals arrested. Eight years ago, one
town still charged a fee to review its council's minutes. Until four years
ago, another town refused to release the names of its delinquent taxpayers.
In a more recent escapade, state auditors toyed with the Richmond Times Dispatch
for a good part of 1995, before an act of the General Assembly amended the VFOIA
and forced the release of completed state audits. Even so, at one point
officials tried to charge the newspaper as much as $5 per page for redacted
copies of the audits -- before negotiating a settlement. The newspaper
A year spent battling the bureaucracy for information on those few who
abuse positions of trust shows that state government would prefer to keep
sins a secret.
Three more recent news reports from around the state support the notion that
many public officials retain negative attitudes toward the VFOIA: (1) the state
school board association's executive director recently said board members from
across the state frequently call to ask how they can get around the VFOIA
law, (2) despite a judge's ruling that supervisors violated a closed
meeting law, one of the supervisors told reporters he did not feel he was wrong
and said would "do it all over again," (3) and while a senior Virginia
Municipal League official said most city and county officials intend to comply
with the VFOIA, he also noted:
I grew up in the country, and you have certain styles. Things happen that
don't meet the law, but that are still done in good faith.
Senior state newspaper editors lead the call for major reform of the VFOIA.
Recently, they opined:
The public has a right to know what its getting for its money ... [But]
officials across the Commonwealth routinely ignore the public's right to
... The law is so full of loopholes that even flagrant flouting may not be,
technically, a violation.
Too often, those elected, appointed or hired to run the government view
its internal workings as their private domain ... It is too easy [for them]
circumvent the intent of the law.
The General Assembly took its last long look at the law in 1989. While it
enacted some welcome revisions to the law, many of the recommendations made by
the Virginia Press Association were ignored.
In 1997, in the face of evidence that the state's access law is both weak and
under-enforced, the state's leading VFOIA advocate in the House of Delegates
called for a new legislative study. In doing so, the delegate said:
What's left of FOI is now defined by the exceptions to the rule... One
has to ask, 'What's left of it? If one is clever, one can find an exemption
for darn near everything. Certainly, the business community has gotten
exemptions for just about everything regarding their dealings with the
By a wide margin, the Generally Assembly agreed to conduct the study.
While its exact scope and form remain as yet undeveloped, the study offers an
excellent opportunity to rewrite the law. But to be effective the new
provisions must direct state and local officials, especially judges, to abide by
the VFOIA's original policy statement, which assures liberal access to records,
except in narrow and specific situations.
 See Va. Sen. Doc. 10 (Feb. 4, 1997).
 See Henry H. Perrit, Jr., Sources of Rights to Access Public Information. 4
Wm. & Mary Bill Rts. J. 179.
 Harold Cross. The People's Right to Know, 4 (Colum. Univ. Press 1953).
 No Evil in Information, The Economist, May 31, 1980, at 15.
 Robert L. Hughes. Tapping Officials' Secrets: A State Open Government
Compendium. iii (Reporters' Committee for Freedom of the Press 1993).
 Telephone interview with Forrest Landon, Executive Director, Virginia
Coalition for Open Government (Feb. 11, 1997).
 See Va. Code Ann. Sec. 2.1-340 (Michie 1996).
 See Id.
 See Hughes, supra note 5 at 1.
 Telephone Interview with John Edwards, President, Virginia Press
Association, and Publisher, The Times, Smithfield, Va. (Feb. 13, 1996).
 See Leef Smith, Democrats Angry At Allen, Aides In Affair Over Disney Road
Costs, The Washington Post, Oct. 6, 1994, at C1.
 See John Dillan, Clinton Team Not Helpful to Press, Says a Reporters
Committee Study. The Christian Science Monitor. p. 2. March 18, 1994.
 See Comment. Public Inspection of State and Municipal Executive Documents.
45 Fordam L. Rev. 1105 (1976).
 See Cross, supra note 3 at 25.
 See Id.
 See Id. at 26.
 See Fordham L. Rev., supra note 14 at 1108.
 Cross, supra note 3 at 27, quoting State ex rel. Ferry v. Williams, 41
N.J.L. 332 (1879).
 Id. at 27, quoting Clement v. Graham, 78 Vt. 290 (1906).
 See Id. at 28.
 See Fordham L. Rev., supra note 14 at 1107.
 Cross, supra note 3 at 29.
 See 5 U.S.C. 552 (1994)
 See Id.
 Charles N. Davis and others, Constant Fight for State Records, 84 The Quill
 See 26 Urb. Law 65, 77 (1995).
 See Id.
 See Id.
 See Id.
 Id., quoting Nancy Monson, executive director of the Texas Freedom of
 See Associated Tax Service, Inc. v. Fitzpatrick, 236 Va. 181, 372 S.E.2d
 See Perrit, supra note 2 at 191.
 Electronic Freedom of Information Act Amendments of 1996. Pub. L. 104-231,
110 Stat 3048.
 Perrit, supra note 2 at 191, quoting 619 N.E. 2d 437 (Ohio Ct. App. 1992).
 Roanoke City School Board v. Times-World Corp., 226 Va. 185, 194, 307
S.E.2d 256, 260 (Poff, J., dissenting) (1983).
 See Va. Code Ann. Sec. 2.1-340.1 (Michie 1996)
 Va. Code Ann. Sec. 2.1-342(A) (Michie 1996)
 Va. Code Ann. Sec. 2.1-342(A)(1-4) (Michie 1996).
 See Id.
 See Id.
 See Id.
 See Va. Code Ann. 2.1-342(B)(Michie 1996).
 See Va. Code Ann. 2.1-342(B)(4)(Michie 1996).
 See Id.
 See Va. H. Doc. 70, The Freedom of Information Act and Public Access to
Government Records and Meetings (1989).
 See Va. Code Ann. 2.1-342(A) (Michie 1996).
 See 5 U.S.C. 552 (1994).
 Va. Code Ann. 2.1-342 (Michie 1996) and telephone interviews with Jean
Light, Director of Public Information, Fairfax County, Va. Feb. 20, 1997; Diane
E. Horvath, Staff Attorney, Virginia Division of Legislative Services, Feb. 25,
1997 and Michael Leiniger, Director's Office, Virginia Department of
Corrections. March 10, 1997.
 Lee Hockstader, Fairfax Police Ordered to Supply Arrest Lists, The
Washington Post, Sept. 7, 1984, at C3.
 See Associated Tax Service, supra note 32 at 183.
 Light, Horvath and Leiniger, supra note 54.
 Light, supra note 54.
 The sources for this comparison are uniform summaries prepared by the
Reporter's Committee for Freedom of the Press of all 50 states. See Dan Paul
and Franklin G. Burt. Tapping Officials Secrets: The Door to Open Government in
Florida, at 1. (Reporters' Committee for Freedom of the Press 1993) and Robert
L. Hughes. Tapping Officials' Secrets: The Door to Open Government in Virginia
at iii (Reporters' Committee for Freedom of the Press 1993).
 Florida, supra, note 59 at 1.
 Fla. Stat. Sec. 119.01(1)(1991).
 See also 1986-87 Va. Op. Atty. Gen. 28.
 Light, Horvath and Leiniger, supra note 54.
 See supra, note 59.
 Virginia, supra, note 59 at 8.
 See 1987-88 Va. Op. Atty. Gen. 45.
 242 Va. 219, 409 S.E.2d 136 (1991).
 252 Va. 156, 475 S.E.2d 803 (1996).
 242 Va. at 224, 409 S.E.2d at 139.
 242 Va. at 222, 409 S.E. 2d at 138.
 242 Va. at 224, 409 S.E. 2d at 139.
 Student Access to Election Totals Denied, Student Press Law Center Report.
p. 4. Winter 1996-97. Vol. XVIII, No. 1.
 Wall's father represented him and had appeared before the U.S. Supreme
Court on several occasions. See High Court Will Hear Student Case, Richmond
Times-Dispatch, June 3, 1996, at B1.
 252 Va. at 156, 475 S.E.2d at 804.
 See Times-Dispatch, supra, note 75.
 Va. Code Ann. Sec. 2.1-342(B)(3) (Michie 1996).
 252 Va. at 156, 475 S.E.2d at 805.
 Editorial, Let Kids Know the Score, Roanoke Times & World News. June 4,
1996., at A4.
 See Va. Code Ann. Sec. 2.1-342. (Michie 1996).
 See Va. H.B. 3, 1974 Acts of Assembly, Chapter 332.
 See Va. Sen. Doc. 10, supra, note 1.
 See Id. at 6,7.
 See Id. at 2.
 Id. at 13.
 Id., quoting Virginia Press Association Comments on the VDIT's Draft
Feasibility Analysis Regarding Compliance With Senate Bill 326 (no page
 VPA Comments, supra note 89.
 See Va. Sen. Doc. 10, supra, note 1 at 10.
 Id. at 8.
 Id. at 9.
 See Steve Weinberg. The Reporter's Handbook. 48-49 (St. Martin's Press
 See Va. Sen. Doc. 10, supra, note 1 at 8.
 See Wienberg, supra, note 98.
 236 Va. 181, 187, 372 S.E. 2d 625, 629 (1988).
 VPA Comments, supra note 89.
 Forrest M. Landon, Virginia Begins Making The People's Information
Available On-Line, The (Norfolk) Virginian Pilot. March 3, 1997, at B11.
 See Id.
 See Ruth S. Intress, Senate Passes Bill To Limit Inmates' FOI Use,
Richmond Times-Dispatch, Jan. 21, 1997, at A10.
 Talking Points on Abuse of FOIA. Prepared by Michael Leiniger, Office of
the Director, Virginia Department of Corrections (Oct. 7, 1996).
 From two unidentified inmate VFOIA requests supplied to the author by the
Virginia Department of Corrections (March 10, 1997).
 Respondent's Requested Order. Fenstermacher v. Mahon. V97-49 (Culpeper
Cir. Jan. 17, 1997).
 Va. Code Ann. Sec. 2.1-342. (Michie 1996).
 Liberally adapted from William Shakespeare, The Tragedy of Hamlet, Prince
of Denmark, act 2, sc. 2.
 See 1 Va. 488 (Call 1799).
 Eleanor Barry Knoth, The Virginia Freedom of Information Act: Inadequate
Enforcement, 25 Wm. & Mary L. Rev. 487. (1984).
 241 Va. 76, 400 S.E.2d 175 (1991).
 243 Va. 480, 416 S.E.2d 446 (1992).
 See 243 Va. at 481, 416 S.E.2d at 446.
 Wm. & Mary L. Rev., supra, note 115, quoting Va. Code Ann. Sec.2.1-346
 216 Va. 892, 223 S.E.2d at 895 (1976).
 216 Va. at 895, 223 S.E.2d at 898.
 216 Va. at 895, 223 S.E.2d at 898.
 216 Va. at 895-96, 223 S.E.2d at 898.
 Wm. & Mary L. Rev., supra, note 115 at 496.
 Wm. & Mary L. Rev., supra, note 115 at 496-97, quoting 1976 Va. Acts 709
(codified at Va. Code Ann. Sec. 2.1-346 (Michie 1996)).
 223 Va. 245, 288 S.E.2d 415 (1982).
 223 Va. 259, 288 S.E.2d 423 (1982).
 223 Va. at 258, 288 S.E.2d at 422.
 See Id.
 223 Va. at 270, 428.
 Wm. & Mary L. Rev., supra, note 115 at 502-3.
 Wm. & Mary L. Rev., supra, note 115 at 504.
 Shenandoah Publishing House, Inc. v. Shenandoah Co. Bd. of Supervisors. 30
Va. Cir. 419 (Shenandoah Cir. 1993).
 247 Va. 309, 440 S.E.2d 911 (1994).
 See 247 Va. at 317, 440 S.E.2d at 913.
 Va. Code Ann. Sec. 2.1-346.1 (Michie 1996).
 See 247 Va. at 317, 440 S.E.2d at 914.
 247 Va. 318-19, 400 S.E.2d at 914-915.
 See 247 Va. at 322-23, 400 S.E.2d at 916.
 Telephone interviews with Landon and John Edwards, President, Virginia
Press Association, and Publisher, The Times, Smithfield, Va. (Feb. 13, 1996); 20
Years Later, Virginia Looks at FOI, United Press International. July 17, 1988,
available in LEXIS, Nexis Library, UPI File.
 Edwards, supra, note 143.
 See 1990 Va. Op. Atty. Gen. 9.
 See 1989 Va. Op. Atty. Gen. 12.
 See 1993 Va. Op. Atty. Gen. 217.
 See John Willis, State Refused to Give Details; Articles Took Months To
Materialize, Richmond Times-Dispatch, Dec. 31, 1995, at A12.
 Sunshine Law at Center of Assembly Tug of War, The (Newport News) Daily
Press, Jan. 26, 1997, at 1, quoting Frank Barnham, Virginia School Boards
 Id., quoting Clary Witt, Virginia Municipal League.
 Editorial, It's the Public's Business, The Roanoke Times & World News,
Jan. 18, 1997, at A9.
 Editorial, Overhaul Need to Keep Virginians Informed, The Virginian-Pilot
and The Ledger-Star, Norfolk, Va., Jan. 20, 1997.
 Va. Gen. Ass. H.J.R. 416, Establishing a Joint Subcommittee to study the
Virginia Freedom of Information Act. January 30, 1997.
 Daily Press, supra, note 151, quoting Del. Jay W. DeBoer.
 Va. Gen. Ass. H.J.R. 416, Amendment by Sen. Houck agreed to, Feb. 19,
1997. Engrossed version.