Virginia FOIA exemptions maintain tight grip on university records
VIRGINIA — In the aftermath of the now-discredited Rolling Stone article “A Rape on Campus,” the University of Virginia received a flood of public records requests from media outlets and other concerned citizens regarding the university’s handling of sexual assault on campus. But because of exemptions in the state’s Freedom of Information Act, the university president has been able to shield her correspondence and notes on these matters from the public.
The state public records law exempts the “working papers and correspondence” of several state officials, including the governor and gubernatorial staff, the attorney general, state legislators and university presidents.
This year, the difficulty many had in getting records from UVA president Teresa Sullivan prompted a resurgence of interest in the exemptions.
A pair of bills in the Virginia legislature aimed at removing the university president exemption were introduced but they have languished in the statehouse, said state Sen. Chap Petersen, a Democrat and sponsor of the Senate version of the legislation.
“As a practical matter, the bill is dead,” Petersen said. It was referred to the state FOIA Council for study.
But the fight to chip away at the law’s thick wall of exemptions is ongoing. A state House of Delegates joint resolution also called for the FOIA Council’s three-year review of exemptions in the state’s public records law, which will conclude on Dec. 1, 2016. So far, the council has recommended modest tightening of the exemptions, such as removing “correspondence” from being shielded from the public record.
Working papers are defined in the law as “records prepared by or for an above-named public official for his personal or deliberative use” — in other words, rough drafts used in the decision-making process — but the term has warped into a catch-all mechanism for denying public records from state officials, said Megan Rhyne, executive director of the Virginia Coalition for Open Government. The exemption shields the records of several hundred state officials from public knowledge, Rhyne said.
“I think the overall exemption has been interpreted in a way that has kind of swallowed the original intent,” Rhyne said.
Following the sea of national outcry after the Rolling Stone article, UVA’s board of visitors hired a law firm to investigate the university’s handling of the fraternity-house gang rape detailed in the article.
Sullivan, UVA’s president, has said in interviews with various media outlets that the U.S. Department of Education refused to allow the executive summary of the investigation to be released, despite the state attorney general’s request.
“We cannot even be transparent about an instance in which we spent taxpayers’ money,” Sullivan told the Roanoke Times.
The Student Press Law Center submitted a FOIA request earlier this month asking for copies of correspondence between UVA administrators, the Department of Education and the office of the attorney general regarding the proposed release of the investigation, but university officials denied the request based on the college president working-papers and correspondence exemption and another exemption that shields legal advice under attorney-client privilege.
The state exemptions, however, are not mandatory, meaning that officials are allowed to disclose records at their discretion.
The working-papers exemption is meant to allow leaders the freedom to weigh different ideas in the decision-making process without the burden of public scrutiny, Rhyne said. But Virginia’s broad interpretation of the exemption extends far beyond the “deliberative” process, which is known as “executive privilege” in some states with similar laws, she said.
Some states also have clauses in their open-records laws lifting the exemption once a decision has been made, Rhyne said.
Petersen said he tries to chip away at the exemptions one by one each legislative session, with little luck.
“I’ve done one on police reports, I’ve done one on legislators,” he said. “Pretty much every year, I lose.”
And it’s not just the UVA rape case documents that could be left in the dark — records of board discussions with college presidents about other matters of public concern, such as raising tuition rates, could never reach the public eye, Petersen said.
“So many people have allowed FOIA exemptions to be the rule, not the exception,” he said. “That needs to change.”
Contact SPLC staff writer Tara Jeffries at 202-974-6317 or by email.
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