Editorial: In The Open

Nearly every local government these days spends time talking about how much they value transparency. Yet with rapid advances in communication technology, ensuring open government seems to get more difficult, even though citizens might expect the opposite to be true.

It wasn’t long ago that enforcing open meeting laws was as simple as making sure no more than two supervisors or council members at a time were talking about the public’s business in smoky back rooms. With the advent of email, back-channel (non-public) communication became far easier, although there remained a record of the conversation—if the participants preserved the files and if the members of the public somehow knew to ask to see them.

Today, there are numerous options for instant communication—Instant Messenger, Facebook Messenger, phone texts. Some, like Snapchat, are designed to make the messages disappear—poof. And each of these tools are available at government officials’ fingertips 24/7.

That is the environment in which governments operate today.

Members of the General Assembly and Freedom of Information advocates should continue their efforts to keep the operations of government in the sunshine. However, in reality there is no substitute for elected leaders’ strong commitment to the principals of open government and transparency. It will be the standards and expectations they set—more so than behind-the-times state laws—that will determine their success.

In the case at hand, Supervisor Tony Buffington’s opposition to plans for a larger grocery store on the property in his district was no secret. There is no reason to think that sharing his positions in private text messages would be more effective than participating in the meeting by telephone or simply sending a statement to be read into the record (which turned out to be the result anyway thanks to the quick thinking of a county attorney). Even if the text messages did not violate current laws, clearly the latter two options better serve the public’s cause.

Here’s another option: Supervisors could turn off their phones during meetings.

In the long run, the circus of Friday’s meeting may inspire another change to Virginia’s open meeting laws. We hope the more immediate result is for Loudoun’s Board of Supervisors—and the county’s other local governing bodies—to renew their commitment to adhere to the letter and the spirit of FOIA laws in all their actions when carrying out the public’s business. Only good can come from that.

One thought on “Editorial: In The Open

  • 2016-07-21 at 12:29 pm

    I agree with the sentiment. But a problem remains. Judges.

    It is obvious that Loudoun County School Board members flaunt the FOIA open meeting laws. Watch the videos of their LCSB meetings. You will see them congregate after adjourning a meeting. When 3 members talk about any business or when a quorum (2 members of a 3-person committee) do the same thing, that violates the open meeting laws. But who is going to enforce that?

    Well, I did for one. Last year, I filed a FOIA suit in Loudoun County Circuit court seeking electronic records of the LCSB members (phones, emails, texts, etc.) to demonstrate that’s how LCSB conducts business. It is no coincidence that during rezoning votes, plans get dropped on the public immediately before the vote. Somehow the public has never seen these but members of LCSB are ready to vote and amend the plans with already devised amendments! That is overwhelming circumstantial evidence that FOIA laws are being broken.

    But citizens don’t have subpoena power. We must observe circumstantial evidence to make a claim and then use the legal system’s process of discovery (where officials are forced to turn over evidence) to prove it. Judge Jeanette Irby threw my FOIA case out. She claimed I had to prove violations before I could bring a case. That’s nonsense. Even in capital criminal cases, the prosecutors don’t always have the weapon or even the body of a deceased victim. Yet, they use circumstantial evidence to get a warrant and search for additional evidence. Discovery in civil cases works the same way.

    But not when you have a local judge that protects officials against FOIA violations. When judges such as Irby block discovery on FOIA allegations, they demonstrate they are more interested in protecting their old gov’t buddies than protecting the public’s right to know. But hey, if a judge like Irby is willing to make up imaginary facts to absolve gov’t officials or sanction a citizen activist who demonstrates the LCSB chairman violated the conflict of interest act, throwing out FOIA suits are chump change, no?

    Something tells me Judge Cacheris of the US District Court (an Ivy League grad instead of a local judge who graduated from a bottom 10 law school) won’t see the law or the facts in the same way.

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