by Dick Hall-Sizemore
One of Governor Youngkin’s “day one” actions was the creation of the Commonwealth Chief Transformation Officer as a member of his Cabinet, as well as the Office of Transformation within the Governor’s Office. Executive Order Number Five sets out the duties of this official and his office: “The primary responsibilities of the Commonwealth Transformation Director will be to help create a culture of transparency, accountability and constructive challenge across our government ; ensure that employees at all levels of government remember that our government works for the citizens of Virginia…. »
Eric Moeller has been appointed Chief Transformation Officer of the Commonwealth. In building a “culture of transparency,” I suggest that Mr. Moeller start on the fifth floor of the Patrick Henry Building where the Governor’s Office and Cabinet members’ offices are located. The first agenda should be a course on the basic requirements of Virginia law for transparency and accountability.
Identify me as a contributor to Bacon’s Rebellion, I recently submitted a request to the Governor’s Press Office for copies of resumes and other information regarding some of the Governor’s appointees. The state’s Freedom of Information Act (FOIA) gives government agencies five days to respond to such requests. After more than five days had passed, I complied with the request, reminding the staff member of the FOIA timeline. The response was, “I didn’t realize this was a FOIA request as it was never stated in your email and I was treating it as a media request.” The responsive email indicated that my request was being forwarded to a specific FOIA email address.
There are several things wrong with this answer, as I was taught in my FOIA 101 training many years ago. The main section of the FOIA (Sec. 2.2-3704) states that “all public records shall be open to citizens of the Commonwealth, representatives of newspapers and magazines circulating in the Commonwealth…” Further, “Application no. ‘need not refer to this chapter to invoke the provisions of this chapter or impose response deadlines on a public body.” There are exceptions to the requirements and provisions for extending the deadline. However, the agency is required to respond by providing the requested material, citing an exemption, or requesting an extension.In summary, every citizen is entitled to a copy of the public records, or a response to their request, within five days of the filing of Such a request does not have to invoke the FOIA for the requirements to apply.. Indeed, the FOIA automatically applies to any request. It is reasonable for an agency to instruct its employees to refer any requests for records or documents to a FOIA-designated agent, but it is not the citizen’s responsibility to send their request to that agent. A citizen can submit her request to any employee of an agency and the FOIA is applicable regardless of the position held by that employee.
I received the requested documents shortly after this exchange. In my request, in addition to requesting copies of the documents, I had asked for clarification, specifically, how a “confidential political adviser” differs from a “special adviser”. The governor’s office responded, “Virginia FOIA provides for access to certain records upon request with precision. It does not provide for interrogations or independent questions. I’m certainly aware of this, but I assumed that simple courtesy and a “culture of transparency” would have resulted in an attempt to answer my question.
In another instance, I submitted a request to the Secretary of Finance for a copy of a memo that had been sent to agencies in his secretariat. I did not specifically invoke the FOIA in my request. Five days passed without a response. I followed, this time specifically with reference to the FOIA. Still no answer. In short, the secretary ignores my request.
The administration is attacked on other fronts and even prosecuted for its refusal to hand over certain files. But this is a high profile issue (the school’s ‘report line’) and those complaining are media companies. For the ordinary citizen whose request is ignored, the problem will probably not be worth the time and effort.
The Youngkin administration is certainly not the first to resist FOIA requests. I’ve had issues with some Northam administration agencies and the fights Jim Bacon and Walter Smith have had over their FOIA requests in the past have been well documented on this blog. A circuit court recently ruled in favor of a litigant in a lawsuit filed against the Department of Health under Northam. However, Youngkin said he would be a “different kind of governor” and appointed a senior official with a directive to build “a culture of transparency”. He must educate his staff and Cabinet members on the basic requirements of the law. The Virginia Freedom of Information Advisory Council offers such training.