File cabinets. (Getty)
One of the less noticed features of the Virginia Way is the long-running tendency of the commonwealth’s leaders to conduct their decision-making behind closed doors. While the Virginia Freedom of Information Act presumes all government business is by default public and requires officials to justify why exceptions should be made, too many Virginia leaders in practice take the opposite stance, acting as if records are by default private and the public must prove they should be handled otherwise.
In this feature, we aim to highlight the frequency with which officials around Virginia are resisting public access to records on issues large and small — and note instances when the release of information under FOIA gave the public insight into how government bodies are operating.
Does the government overuse exemptions to withhold information from the public?
An out-of-state professor of journalism and podcasting encountered difficulties accessing records from Virginia law enforcement under the Freedom of Information Act (FOIA), according to a recent report by WTVR in Richmond.
David DesRoches was investigating a 1990s murder case that occurred on his family’s property in Goochland County, which was solved and closed by the Richmond Police Department in 2015.
DesRoches sought the case files for educational purposes but was denied access due to a FOIA exemption that allows law enforcement to withhold information, even for closed cases.
Richmond Police cited their policy of using exemptions in serious violent crime and death investigation cases — a practice DesRoches found unusually restrictive compared to his experience in Connecticut.
Del. Marcus Simon, D-Fairfax, who chairs Virginia’s Freedom of Information Advisory Council, told WTVR that overuse of these exemptions is a common issue in the state, with many agencies applying them too broadly, limiting public access to information.
Simon explained that while FOIA exemptions are discretionary, they are often used as a shortcut by government bodies to reduce their workload, instead of fully processing public requests. He suggested that requiring agencies to justify their denials in detail could encourage more transparency and limit the overuse of exemptions.
Man sues Portsmouth’s top prosecutor in open records dispute
Josh Stanfield, a 38-year-old from York County, frequently files open records requests with state and local agencies, a hobby that often leads him to court.
In December, Stanfield sought records on former Portsmouth Police Officer Vincent McClean, who was charged with manslaughter for failing to provide aid in two separate 2018 cases, the Virginian-Pilot reported earlier this week.
Stanfield also requested records on Robert Huntington, a former investigator involved in McClean’s case, but encountered delays and conflicting information from the Portsmouth Police and the local Commonwealth’s Attorney’s office.
After getting the runaround from both agencies, Stanfield hired attorney Verbena M. Askew and sued Commonwealth’s Attorney Stephanie Morales, arguing the office violated Virginia’s Freedom of Information Act by not responding within the required five business days. At a court hearing, Morales’ attorneys admitted the response was late but argued the records were exempt due to personnel and administrative protections, making the delay irrelevant.
Circuit Court Judge Randall Smith acknowledged the frustration caused by the delay but allowed the prosecutor’s office to cite exemptions. He questioned whether government agencies should have the sole authority to withhold documents without external oversight, suggesting he might review the records personally.
Stanfield told the newspaper that he viewed this experience as part of his ongoing effort to hold government agencies accountable, though he remains frustrated that his reputation for persistence has not yet led to better compliance with public records laws.
Few Virginia whistleblowers, even fewer rewards, from state fund
In 12 years, Virginia’s whistleblower reward fund, managed by the state inspector general, has paid just one claim — $2,041 in fiscal year 2023 — despite receiving 32 tips for potential rewards, according to an analysis by the Richmond Times-Dispatch.
This lackluster performance has disappointed former legislator Manoli Loupassi, who championed the fund’s creation based on the success of a similar program in Richmond. Loupassi questioned the incentives for government officials to report fraud or waste, suggesting a lack of awareness about the fund.
The Office of the State Inspector General (OSIG) receives hundreds of complaints annually but substantiates only a fraction. In 2023, it resolved 165 cases out of 762 complaints, with only 32 deemed valid. OSIG’s public relations officer, Maggie Sotos, explained that many complaints don’t meet the criteria for fraud or abuse, and rewards are only issued if tips lead to recovering at least $5,000. The whistleblower receives up to 10% of the recovered funds.
Despite a 34% increase in hotline cases investigated over the past three years, the number of unsubstantiated allegations remains high. A 2018 study found that OSIG handled less than 5% of fraud and waste investigations, with most being handled by individual state agencies. These investigations are often conducted by untrained personnel, raising concerns about their thoroughness and effectiveness.
A recent report from the Joint Legislative Audit and Review Commission highlighted the need for the inspector general’s office to better investigate complaints, especially those involving state psychiatric hospitals. The commission warned that failure to fully investigate could lead to critical issues being ignored or concealed.
Have you experienced local or state officials denying or delaying your FOIA request? Tell us about it: info@virginiamercury.com
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