FOIA or Flop? Our Battle for Transparent Government
Welcome back! Today, Jessee and I are diving into the world of FOIA (Freedom of Information Act, pronounced “Foy-ah”). It’s a term you've likely seen floating around in state and local headlines, but probably don’t know what it means and how it works unless you work in journalism, politics… or you’re super nosy private citizens like us ☺️. Still, it’s important to understand the critical role that FOIA plays in ensuring government transparency and accountability; so buckle up for a little FOIA 101:
FOIA Origins
Allegations of “corruption” and “secrecy” have plagued the US government since its creation - but this reputation hit a fever pitch during the Cold War, when, for example, President Kennedy backed a secret plot to overthrow the Cuban government, Senator Joseph McCarthy accused everyone and their mothers of being Russian spies, and the Department of Defense (DOD) was sweeping evidence of accidentally poisoning citizens with nuclear radiation under the rug.
So in 1966, Congressman John Moss (D-California) introduced a plan to win back the trust of the American people by giving them access to whatever government records they wanted… with a few exceptions that mostly aimed to protect national security and personal privacy. He called this the “Freedom of Information Act” and passed it along to President Johnson, who reluctantly signed it into law. (Johnson was concerned it would add administrative burden and leave national secrets overly-exposed.)
This 1966 version of the law was well intentioned, but it lacked enforcement and offered a lot of exceptions that government officials could hide behind. This became evident over the course of the next decade, as whistleblowers revealed President Nixon had (ab)used his authority over federal agencies to antagonize and spy on his political enemies (ex: Watergate), and the DOD had consistently lied to the American people about the scope and scale of their involvement in the Vietnam War.
Soooo FOIA got a major makeover in 1974. Congress tightened up the rules by cutting back on the number of exceptions, and giving courts power to enforce the public’s access to government information.
FOIA has been revamped a few times since: in 1996 (updated for the internet age), 2007 (requiring faster response times, limiting FOIA fees), and 2016 (introducing the “presumption of openness.”)
This last reform - the presumption of openness - is incredibly important to the FOIA story. This rule basically sent a clear message: transparency is the norm; that, when someone asks to see government documents, the default answer should be “yes” unless there’s a really good reason to say “no.” This is supposed to prevent agencies from withholding information they don’t feel like sharing.
Each wave of reforms was intended to make it easier to access information, while also sending a preventative signal to agencies that the public is watching, potentially deterring dishonest activities before they start.
FOIA Basics
Every citizen has FOIA power, but most don’t know how to use it. Here’s a little step-by-step breakdown:
FOIA starts with a question. What information do I need? Be very clear and very specific.
Next, you’ll need to find out which government agency has the information you need. That agency may be at the federal, state, or local level. Ex: at the local level, for example, you might FOIA the police or fire department, the school system, the health department, public works, or any city office.
Submit your question to that agency’s FOIA officer. These instructions (including mailing or email addresses) are available online. (Google hasn’t failed me yet!)
The agency typically has 5 business days to respond to that FOIA request, either by turning over the requested documents, denying the FOIA request (with cited exemption), or requesting additional time (up to 10 days) to process the request.
Government agencies may charge a fee to cover costs associated with processing your request. This may include the hourly rate of the employees hinting down the information, or the costs for actual materials needed to copy/print/produce the requested records. The fees are meant to cover costs, not make money, and agencies must give a detailed list of these charges to the requester.
Under Virginia law, agencies must give an upfront cost estimate for FOIA requests if charges will exceed $200. They need to detail these charges and get your consent before moving forward, so that you're not caught off guard by the fees. In some cases, the agency may require a down payment before they process larger requests - which also lets them hit pause on the usual 5-or-10 day response deadline until they receive your payment.
FOIA Follies
Despite its good intentions, the FOIA process often doesn't work as smoothly as planned.
For one, citizens don’t have freedom to information - they have freedom to the information they can afford. Government agencies can set prices that both deter FOIA requests and dramatically limit who can afford them. Some are so egregious that critics describe the government as “weaponizing” their right to recoup costs against their own citizen. Ex: the $28,000 VMFA charged CBS6 when they tried to find out what happened to the $1 million in state money they got toward the abandoned plan to “reimagine Monument avenue;” or the $7,873 the RPD charged *for a copy of its general practices.*
Mayor Stoney all but admitted to this weaponization, saying through his spokeswoman that his administration charges for “opportunity costs”:
“Each second that a City employee spends on fulfilling a FOIA request is an opportunity cost to other essential functions of the City that the employee could have been performing for the taxpayers at large, as opposed to just for the requester." Petula Burks
By this logic, FOIA is a selfish nuisance, not a citizen’s right… which probably explains why Burks had an “adversarial relationship” with Richmond’s FOIA officer, Connie Clay, who is now suing Burks for wrongful termination after raising concerns about the city’s persistent noncompliance with FOIA law.
"I sounded the alarm, for several months, and no one listened, and I was silenced and then fired… It's just such a huge disappointment that the bureaucrats in City Hall do not want to follow the law. And if I don't say something, who will?” Connie Clay
Government Agencies are still abusing FOIA exemptions, too. Our Governor, in particular, has “withheld hundreds of pages” of his correspondence with the departments of health and education, his calendar, and now faces a lawsuit for withholding records about how the Governor may have instructed his Chief Diversity Equity and Inclusion Officer to abandon his commitment to/enforcement of… diversity equity and inclusion!?
And while courts do have the authority to enforce that “presumption of openness” idea we talked about - citizens often do not know how to initiate this sort of review, or have the luxury of paying legal fees and sitting around in a courtroom while the agency defends their FOIA practice before a judge. Ex: local media spent a full day in court to challenge RPS’s withholding of the shooting investigation report.
Otherwise, agencies process FOIA requests with very little oversight, and apply FOIA laws wildly inconsistently. To illustrate this, Jessee and I did a little experiment…
FOIA Tested: A Look at Public Information Access in the Richmond Area
Our focus in this experiment was to learn more about how FOIA processes compare in the Metro Richmond Area including:
Richmond City
Henrico County
Chesterfield County
Hanover County
Becca inquired with the public school systems and Jessee inquired with the locality governments. As with any good experiment, we needed a “control;” so we asked each agency for the exact same information:
How many FOIA requests did they complete in 2023
What was the total revenue from the FOIA requests
From there, we began to track their response times as well as the data provided to better understand the end-user experience from both a process and fiscal standpoint. Here’s what we found:
Our Takeaways
No two localities are the same. For example, Chesterfield has an online Public Records Request Portal where you log-in, submit a FOIA request to the appropriate agency, and receive email notifications when there are updates available.
Another Example: In Richmond City and Chesterfield County, government agencies (minus schools) process FOIA requests through a shared, centralized office. However, in Hanover County, each agency (mostly constitutional offices) process their own FOIA requests independent of the county government. These smaller Hanover County agencies were able to respond much faster than the others - one as short as 12 minutes; but most within hours of FOIA submission.
Response Times Were Highly Variable
All localities (except Richmond City) acknowledged they received our requests the same day they were submitted; and, all localities (except Richmond City) returned records on or before the FOIA deadline (5th business day). Responding to FOIA is the law. Responding promptly SHOULD be the norm.
Frankly, it is no shock that Richmond City was an anomaly in terms of response time, especially since we know the FOIA office has been in recent turmoil. That said, I was shocked at the level of absolute radio silence I received from Richmond City:
On March 20th, I submitted my initial request directly to Petula Burks email.
I received no response.
On March 27th, 5 business days after my initial request, I sent another email to a general FOIA Officer email address and referenced my previous email.
I received no response.
On March 29th, I emailed a city attorney with this information.
“I sent a FOIA for the city to Petula Burks on 3/20 and have not received an acknowledgement of my request or the records. I sent the same request late on 3/27 but as I have not received any feedback on this request, I wanted to loop you in as well as one of the city attorneys. It is my intention to pursue this FOIA request through all available avenues until I receive an answer. Please advise.”
I received no response.
On April 1st, I shared my experience with CBS6’s Tyler Layne. That story aired on April 3rd at 5PM.
Early in the morning on April 3rd, I received an email from Petula Burks, using a new email address I hadn’t seen before (and isn’t listed anywhere online.) She indicated that she did not receive my initial request, that it had been forwarded to her, and that she would have a response to me by Monday April 8th.
April 8th came and went. No records arrived in my inbox.
On April 10th, I sent a follow up email.
I received no response.
On April 16th, at 4:03PM, Petula Burks provided the requested information… from her original email address.
The average FOIA turnaround time was 3 days, 4.1 hours. Richmond’s response took 16 days and 7 hours.
Costs Were Variable Too
Richmond had the fewest FOIA requests in 2023, and the highest FOIA revenue: $34,284.
I raised my eyebrow when I saw this because…
Chesterfield completed approximately 1600 more FOIAs than Richmond City, and reported $3,201 in FOIA revenue - literally 10% of Richmond’s. That is jaw-dropping!
We couldn’t get a good read on Henrico’s data. Mostly because they don’t record their FOIA data.
(Schools) “No HCPS record exists with the number of FOIA requests that HCPS completed…”
(Police) “…the Henrico County Police Division does not maintain in a central repository the amount charged to fulfill FOIA requests.”
(County) “the County does not maintain in a central repository the amount charged to fulfill FOIA requests.”
This struck us as very odd, so we asked Virginia’s FOIA Advisory Council about it. (The council’s role is educational, not enforcement, by the way.) Here’s what they said:
“FOIA does not require a local government to track FOIA requests received or provided. FOIA does not require a public record to be created by a public body. However, many public bodies do keep track of FOIA requests received and provided.”
“Many” public bodies track their FOIA data - just not Henrico. So instead we relied on the estimates their various agencies provided. It’s not and exact comparison of costs, but really - all these numbers are arbitrary anyway. Case in point:
Hanover County’s Circuit Court Clerk’s Office charges NO administrative fees. Just the “statutorily mandated” material costs at 50 cents per printed page, and $10 to put audio/video records on CD.
Chesterfield Public Schools DOES charge an administrative fee. (That’s the hourly fee for staff.) Quite a bit, too. In 2023 they estimated fees as high as $1420, $1508, $2100, $4533, and $12000 to compensate for time their staff would spend combing through email records, looking for personnel, student, or legal information that would need to be redacted before they’re released.
Charging administrative fees is OPTIONAL, and greatly impacts the average cost of FOIA requests.
”Virginia is among about one-third of states that can charge for the time it takes staff to search for and redact records, which some agencies interpret as a requirement to charge.” (VPM)
Sometimes, within the same government agency, they will charge administrative fees for one record, and waive the administrative fee for the next. For example, our response from Richmond Public Schools specifically noted that their $2,140 in FOIA revenue was only from 17-out-of-121 record requests. 86% of the time, RPS produced FOIA records free of charge. This fact sort of obscures reality, though, since 24 FOIA requests were withdrawn (or ghosted) when they received approximately $12,247.26 worth of FOIA estimates. (That’s about $500 each.)
Similarly, Chesterfield Public Schools delivered 87% of requests for free; but citizens abandoned 20 record requests after the school division estimated a $25,632 fee to process those requests. (That’s about $1,300 each)
Meanwhile, 7 agencies reported charging a $0 for a combined 305 FOIAs in 2023 - more than half of which (188) came from Hanover County. That deserves an award!
“If I don’t FOIA things, why should I care?”
If you clicked through any of the examples above, you’ve probably noticed that journalists and activist groups are on the frontlines of the functional-FOIA-law battle. It’s tempting, then, to dismiss this as someone else’s problem.
But FOIA hits local media’s headlines the way your car hits potholes: both are easy to ignore, both reveal a level of government failure. It’s only after you hit too many that you know you’ve got a real problem on your hands.
When FOIA doesn’t work, it means YOU won’t find out (personally, or via the press) whether.…
Our public services are managed effectively
Our tax dollars are managed responsibly
Our government is behaving ethically, or that
Our rights are being protected
If not - we can use the information FOIA provides to better exercise another crucial citizen power: voting.
Over time, government agencies have defunded their FOIA programs (ie, short staffing), exploited loopholes (exemptions), and defied the “presumption of openness” meant to protect citizen’s right to information.
In the past, this was corrected through waves of FOIA reform. Now, it seems, we’re overdue for another.
That’s all for today! Thanks for joining us ☺️
- Jessee & Becca