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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.
Comm’r,
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 government’s
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 (Virginia’s
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 UARF’s
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. Everett’s
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 years’
worth
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 UARF’s
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. Everett’s
email response to UARF’s
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. Everett’s
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 UARF’s
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 DeSteph’s
confirmation from the Attorney General was forwarded to Ms. Everett and Ms.
Treadway.
Yet to date, UARF has not
received a response to UARF’s
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 Virginia’s
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 State’s
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.
DLS’s
Mission statement on the Commonwealth of Virginia’s
Website states that:
The
Division’s
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. VFOIA’s
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 Virginia’s
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 people’s
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 individual’s
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 public’s
faith that the process is fair.
VFOIA’s
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 government’s
decision-making process instead of promoting and fostering transparency and
accountability.