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Unalienable Rights Foundation - Kathleen McCarthy / Chair  Issues a stunning report of FOIA Council
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Welcome to Unalienable Rights Foundation!


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     Random Headlines

General Counsel and Senior Law Fellows
[ General Counsel and Senior Law Fellows ]

·Richard Nixon Pardon / In Part
·State Court Docket Watch - Winter 2012-2013
·what makes the D.C. Circuit so different
·Health Care Litigation Update
·Separation of Powers CLE Course featuring U.S. Supreme Court Justice Antonin Sc
·Citizens United v. FEC - Federalist Society Debate

     UARF FELLOWS

What is a UARF Fellow 



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     CNN LAW
·Court upholds limits on Navy sonar training
·Slain wife accuses husband from the grave
·Prosecutors drop parent-killing case
·Priest accused of lying in mob investigation
·Inmate shot dead after brazen escape
·Juror: Judge and jury pressured me to convict
·Man convicted for Internet hoax death
·Zoloft killer's 30-year sentence appealed
·Girl who shielded mom is a hero at school
·Holloway disappearance hits cold case file

read more...

     Instructions For Replying to Our FOIA

 

Instructions for Responding to
Our FOIA Request to You Click Below



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 Kathleen McCarthy / Chair  Issues a stunning report of FOIA Council

Freedom of Information [Project FOIA] New Page 1
FOIA-Logo-FOIA
 

Kathleen McCarthy / Chair

 Issues a stunning report of

 the Virginia General Assembly’s

 Freedom of Information Advisory Council’s

Incompetency, Malfeasance, Misfeasance, Misfeasance;

 

FOIA Under Attack By the

Virginia Freedom of Advisory Council

Virginia is not heeding the call to deliver information in a way that creates;

  • [1] transparency and;

  • [2] demonstrates accountability.

The Unalienable Rights Foundation
Office of Civil Rights Case Managers
Kathleen McCarthy

Forensic Evidence Management Team

  

Transparency creates a window into the world of government operations.

Accountability provides a measure of how government is performing.

Transparency and accountability providing citizens with a way to see plans for:

·      services and infrastructure;

·      spending;

·      the evolution of public policy;

All of which starts with providing access to information.

 When Virginia’s government holds itself accountable to the people of the Commonwealth, its citizens, our Government shows:

·      us how and why decisions are made;

·      offers measures of whether the public policy that touches and concerns the people of the Commonwealth are successful. 

An accountable and transparent government provides the “People” individuals and business, “Citizens All,” to get: 

[1] involved;

         [2] to help government reach what goals “We the People,”

the Citizens, have set for it.

This is best summarized in the adage, “Accountability builds confidence in government.

 http://www.esri.com/library/brochures/pdfs/transparency-and-accountability.pdf

Guidance to meet this objective is found in the Code of Virginia:

§ 2.2-3700. B.  By enacting this chapter, the General Assembly ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government

The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. ..  

When elected and appointed officials comply with the Freedom of Information Act:

·      it creates transparency that is free from pretense and deceit,which means that citizens will be able to "see through" the workings of its government;

·      to know exactly what goes on when public officials transact public business.

When Government is not transparent it is prone to corruption and undue influence because there is no public oversight of decision-making:

·      Virginia Freedom of Information Act [FOIA]

·      Virginia Public Records Act [PRA]

·      State and Local Government Conflict of Interest [COIA]

·      As found in:

o   Cartwright v. Commonwealth Transp. Commr, 270 Va. 58, 613 S.E.2d 449 (2005);

o   Fenter v. Norfolk Airport Authority, 274 Va. 524, 649 S.E.2d 704 (2007)

o   White Dog Publishing v. Culpeper Bd. Of Sup., 272 Va. 377, 634 S.E.2d 334 (2006).

These cases and the CODE all say that both elected and appointed officials in government are held accountable to the people by the laws of the Commonwealth [passed by the General Assembly and interpreted by the Courts] that regulate their and our actions.

The CODE and Constitutions [federal and state] limit the governments use of power.  This protects the people from abuse. These laws [PRA / FOIA / COIA] require transparency and/or openness in government so that the people may readily have information necessary to evaluate the performance of their elected and appointed officials.

It was reported in The Virginia News Letter [Vol. 90 No. 2 January by Quentin Kid and Meyrem Baer] that a study conducted by the Center of Public Integrity, Global Integrity, and Public Radio International of all 50 states are on the risk of corruption.

In this study The Corruption Risk Report Card gave individual grades of F to the Old Dominion in several key areas one being public access to information, as well as legislative accountability among others.  http://www.coopercenter.org/sites/default/files/publications/Virginia%20News%20Letter%202014%20Vol.%2090%20No%201.pdf

On July 23, 2015, the Unalienable Rights Foundation (UARF) (Virginia State Corporation Commission ID No. 0632406-5 a Virginia citizen, a Virginia non-stock / not-for-profit corporation/organization and a news organization {see www.UARF.us}) whose [1] mailing address is P.O. Box 1224, Parksley, Virginia 23421-1224, [2] and office address is 306 Main Street, Newport News, Virginia 23601 is endeavoring to provide a valuable public service by independently analyzing and reviewing, without cost to the taxpayers, the operations and records of public entities/bodies (Virginias FOIA exists to provide a mechanism [Slip Op. II] for Virginia citizens to obtain an accounting from their public officials McBurney v. Young, 569 U.S. ___ 1217 (2013) to ensure that the operations of government, such as The Freedom of Information Advisory Council [VFOIAC] and the Library of Virginia [LVA], Agencies [Agency means all boards, commissions, departments, divisions, institutions, authorities, or parts thereof, of the Commonwealth or its political subdivisions and includes the offices of constitutional officers Virginia Code§ 42.1-77] emailed a FOIA request to Ms. Maria J.K. Everett, Executive Director, Virginia Freedom of Information Advisory Council to examine all documents regarding:

·      Hampton Roads Transportation Accountability Commission [HRTAC]

·      Hampton Roads Transportation Planning Organization  [HRTPO]

·      Hampton Roads Planning District Commission [HRPDC]

All of which are alter egos of each other, as each of their responses to separate UARF FOIA requests to each agency indicates.

The responses to UARF FOIA requests from VFOIAC and LVA appear to UARF to confirm the Kid /Bayer findings in their report that touches and concerns corruption.  It appears to UAARF that the corruption has already set in, it is not merely a risk.

Ms. Everett response on July 29, 2015, to UARFs FOIA Request dated July 22, 2015:

Please be advised that a search was conducted of all of our formal, published opinions, our electronic Correspondence directory, and all of our email dating back to 2010…  We also have paper copies of telephone calls and emails dating back to 2000; there are over 20,000 of these records.  We searched these paper phone and email records dating from July 1, 2014, through present date.  The only records in this office's possession that relate to your request are an email sent to Delegate Chris Jones offering FOIA training for HRTAC and a memorandum concerning the application of FOIA to Commissioners of Accounts that was shared with Senator Norment.the original emails will be forwarded to you.  We have chosen not to charge for the time involved in conducting these searches.

Please note that as mentioned, we have an additional 14 years' worth of paper telephone call and email records that are organized by month and year.  It took two of us approximately two hours to search one year's worth of these records (July 1, 2014, to present date, as described above).  We therefore estimate that it would take approximately 28 hours for us to search all of these records to try to find any that are responsive to your request.  At an administrative rate of $20/hour, the estimated cost for such a search would be $560 (we choose not to charge our rates as attorneys as searching these records is an administrative task). 

Unfortunately, while we appreciate your offer to search the records, because some of the records are confidential pursuant to subdivision 4 of § 30-179, we do have to perform this search ourselves.  Therefore, if you want us to search all of these records, please remit an advance deposit in the amount of $560, payable to the Treasurer of Virginia.  In the event that you do wish for us to search all of these records, please be advised that it is practically impossible to provide the requested records or determine whether they are available within the five working days required by FOIA because of the volume of records to be searched.  Therefore, we are invoking subsection B 4 of § 2.2-3704 to provide us with seven additional working days to respond to your request. However, please do not hesitate to contact us if you would like to work out some other arrangement.  

After receiving Ms. Everetts response dated July 29, 2015, UARF sent Ms. Everett the following email dated August 12, 2015:

Again, I would like to thank you for responding so promptly to the July 22, 2015, FOIA and providing me with the two records below:

1.      An email sent to Delegate Chris Jones offering FOIA  training for HRTAC

2.      A memorandum concerning the application of FOIA to  Commissioners of Account that was shared with Senator Norment. 

Additionally, your email response dated July 29, 2015, indicated that you have an additional 14 yearsworth of paper telephone call and email records that are organized by month and year and that it would take an estimated 28 hours to search all of these records to try and find any that are responsive to my request at a cost of $560.00.

Please be advised that we do not expect you or your staff to search, review and/or inspect over 20,000 records.  At this time, I would like to narrow my request, which I believe would be less time-consuming and would substantially cut the costs associated with this request.  

Therefore, I herby request a digital inventory and/or index of the records that touch and concern HRTAC / HRTPO / HRPDC in Exhibit 1, 2, and 3, of the July 22, 2015, FOIA emailed to you on July 23, 2015.  

With an inventory / index, I will then be able to, with some specificity, limit the number of records requested and, at the same time, it will substantially decrease the number of hours of searching by you and your staff.   

Again, please provide me with an itemized schedule of any / all charges related to this request pursuant to §2.2-3704.F.

On August 14, 2015, Ms. Everett responded to UARFs email dated August 12, 2015:

We do not have a digital inventory or index of records that touch and concern HRTAC / HRTPO / HRPDC (we have never created such a record).  Just so you know, we did search for all items responsive to your original request in our electronic files including email, website, published opinions, and our network folder, as detailed in our previous response.  The two records we sent were the only responsive items that we have.  We elected not to charge for the time involved in that search.  The only other records we have are paper records, as also described in our previous response, which you have indicated you do not wish for us to search.  If you have any questions or need additional information, please do not hesitate to call. 

Needless to say, I was completely astonished to learn that the FOIA Advisory Council was not following the FOIA laws § 2.2-3700 - § 2.2-3714 and/or the statutes as required under the Public Records Act § 42.1- § 42.1-92. 

Code Section § 42.1-76 The General Assembly intends by this chapter to establish a single body of law applicable to all public officers and employees on the subject of public records management and preservation and to ensure that the procedures used to manage and preserve public records will be uniform throughout the Commonwealth. This chapter may be cited as the Virginia Public Records Act.

§ 42.1-76.1. Any person elected, reelected, appointed, or reappointed to the governing body of any agency subject to this chapter shall (i) be furnished by the agency or public body's administrator or legal counsel with a copy of this chapter within two weeks following election, reelection, appointment, or reappointment and (ii) read and become familiar with the provisions of this chapter.

§ 42.1-92. B. By enacting this chapter, the General Assembly recognizes that an informed citizenry is indispensable to the proper functioning of a democratic society. In order to remain informed, citizens must know about the activities of their government and benefit from information developed at public expense.

UARF has a written statement that contradicts Ms. Everetts email response to UARFs FOIA requested dated July 22, 2015. 

This contradiction could have easily been resolved if Ms. Treadway, Librarian of Virginia [LV] had implemented, which is her mandate, the Public Records Act and enforced HRTAC / HRTPO / HRPDC to comply with the Code of Virginia § 42.1 - 42.1-92. 

If Ms. Treadway had exercised her discretion pursuant to § 42.1-90.1 [her good judgment], she could have conducted an audit of HRTAC / HRTPO / HRPDC to enforce these Statutes to demonstrate transparency and accountability in Virginia government. 

As it stands now, FOIA is nothing more than a mere gesture, words on a page in some book, because the Library of Virginia is not applying the provisions of the Public Records Act. § 42.1 - 42.1-92.

UARF does not know if Ms. Treadway, has contacted the agencies referenced above that have failed to obey the laws of Virginia because Ms. Treadway has failed to respond to the FOIA request emailed to her on July 22, 2015, and again on August 17, 2015.      

Therefore, UARF cannot determine whether Ms. Everetts response to the July 22, 2015, FOIA request is a contradiction or a false uttering.

If it is a false uttering, the question arises whether it was a knowing and a willing uttering that would lead to holding the respondents to the penalties of Virginia Law that deals with false statements etc., including and not limited to:

·      CODE  § 18.2-462;

·      CODE  § 18.2-469;

·      CODE  § 18.2-471;

·      CODE  § 18.2-472;

Consequently, in an attempt to follow the Code of Virginia regarding the indexes and audits, UARF contacted Delegate William DeSteph and requested that he contact the Attorney General to determine if the FOIA Council and the Library of Virginia are subject to the FOIA Statutes and the Public Records Act. 

Delegate DeSteph, on UARFs behalf, contacted the Attorney General, and on Thursday, August 20, 2015, at approximately 6:32 pm Delegate DeSteph confirmed that the FOIA Council and the Library of Virginia are both subject to the Public Records Act and the FOIA Statutes. 

A copy of Delegate DeStephs confirmation from the Attorney General was forwarded to Ms. Everett and Ms. Treadway.

Yet to date, UARF has not received a response to UARFs FOIA request to Ms. Everett for an Index of records regarding HRTAC / HRTPO / HRPDC, as well as a request to Ms. Treadway that HRTAC/ HRTPO/ HRPDC comply with the Public Records Act including an official audit conducted by Ms. Treadway.

An indication to UARF that the Freedom of Information Advisory Council and the Library of Virginia lack independence. 

After reviewing the Commonwealth of Virginias website, it is quite clear that the Freedom of Information Advisory Council is part of the machinery of government.  FOIA is a branch of the Division of Legislative Services [DLS] and is designated as part of the services provided by DLS on the States Web Site that states that:          

The Division of Legislative Services [DLS] is the legislative branch agency created statutorily by the General Assembly to provide nonpartisan legal and general research services to members of the General Assembly and its standing committees in the House of Delegates and Senate of Virginia.

DLSs Mission statement on the Commonwealth of Virginias Website states that:

The Divisions mission is to assist legislators in fulfilling their duties and obligations as members of the General Assembly.  This is accomplished by providing clear, concise, and objective information to all 140 members of the General Assembly.

Accordingly, by law, VFOIA works in tandem with the members of the General assembly.  VFOIAs priority, according to the DLS website, works in concert with the Legislators and, therefore, its loyalty is with the Legislators and not with the people of the Commonwealth.

Therein lies the problem. 

VFOIA lacks the autonomy or independence to objectively review, revise or delete any exemptions, which is the reason exemptions continue to pile up. 

The simple fact is that the FOIA council wears two hats that create unavoidable conflicts because of the many different interests and loyalties that exist at any given time within these competing roles.

As such, the FOIA council has a duty to more than one person, but cannot do justice to the actual or potentially adverse interest of both parties.  The people of Virginias interests are being overlooked.

Because the FOIA Council is staffed by the Division of Legislative Service [DLS], it is a branch of the DLS. Based on its own Mission Statement, FOIA is required to serve the legislature and not We the People. 

This premise creates a conflict of interest when it attempts to balance the dual role of being an arm or branch of DLS vs. the peoples right to know the inner workings of its government. 

Public servants have a fiduciary responsibility to the people of Virginia.  This fiduciary relationship is based on the utmost trust, confidence, and the integrity of objective decision-making.  Conflicts of interest are a cancer that eats away at these principles. These inherent conflicts could provide an incentive for improper acts in some circumstances.

A conflict of interest can exist even if there are no improper acts as a result of it.  A person with two roles may experience situations where those two roles conflict. Having two roles is not illegal, but the differing roles will certainly provide a conflict that could impair an individuals ability to perform his or her duties and responsibilities objectively.

Impropriety occurs when an elected or appointed official is faced with a conflict of interest.  Because FOIA is part of the DLS, can the people of the Commonwealth honestly believe that they are not being unduly influenced by the mutual reliance and interaction with the General Assembly? 

Two hats cannot fit on one head at the same time.  What assurances do the Citizens of the Commonwealth have that VFOIAC will not be influenced by a member of the General Assembly to create an exemption that conceals unfavorable legislation that protects the Delegate, Senator, or bad acts of Government instead of the People of Virginia?

Transparency is a commitment to openness and by exposing conflicts of interest corruption that is hidden can easily be detected.

COIA is also aimed at perceptions, as well as the realities. It exists even if no unethical or improper acts occur.   A conflict of interest can create an appearance of impropriety that can undermine confidence in the government.

Even the appearance of impropriety undermines the publics faith that the process is fair.

VFOIAs lack of independence presents a dilemma for FOIA because its guiding principle is openness § 2.2-3700.B. and yet the very tenets of FOIA are blurred by the nature of these dual roles.  As a result, the public will continue to lose faith in the integrity of the governments decision-making process instead of promoting and fostering transparency and accountability.

  




 
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