Ten Years of Sunshine:
Frosty Landon’s Reflections on His Work with the
Virginia Coalition for Open Government
With Cy Dillon
VL: The Virginia Coalition for Open Government has been remarkably successful in its first decade, and part of that success has been creating a “big tent” for freedom of information advocates. Was this part of the plan from the beginning?
FL: Yes! Back in mid-1995, a bunch of Virginia newspaper editors were whining. Editors whine a lot, but this time it was for good reason. Virginia’s public documents were often inaccessible (as access “audits” by the press would subsequently prove). Secret meetings were routinely occurring. Open-government support in the courts and the legislature was spotty, at best.
Instead of just whining, the editors took action.
At the heart of their strategic planning (Editors thinking strat egically? Who would have thought!) was a belief that the Virginia Freedom of Information Act needed help, a lot of help. To their everlasting credit, the editors realized that help had to come not just from newspapers and broadcasters, but from anybody and everybody who understood the need for more sunshine — at city hall, at the state capitol, in the local courthouse.
Fortunately, librarians were at the top of that list of concerned professionals, along with members of the Virginia Press Association and the Virginia Association of Broadcasters.
A good working relationship already existed. Years earlier, VLA had joined with Virginia’s media in gaining General Assembly recognition of March 16 as Freedom of Information Day. FOI Day continues to be observed annually on the birthday of James Madison, chief author of the Bill of Rights and the foremost early advocate for openness in government.
Launching VCOG in a nonpartisan partnership with VLA took only a quick email exchange with Linda Farynk, then-president of the Virginia Library Association. The VLA board immediately signed on with a $100 membership check. Erection of our “big tent” was underway. In the eleven years that have followed, at least one of VLA’s leaders has always served on our board of directors.
The idea of forming a broad-based coalition of FOI advocates was not unique to Virginia. Unusual, but not unique. At the time, similar coalitions existed in a handful of other states, including Texas, Florida, Oklahoma, California, Georgia, and New Mexico. In New Mexico, members included the association of county governments. In Oklahoma, the attorney general served as a coalition director. Almost everywhere, librarians were involved.
Forming an inclusive organization was not a hard sell; however, we may have been more aggressive than some of our sister coalitions in putting out the welcome mat for any group or individual, whatever their politics, just as long as they shared our goal of easy access to government records and public meetings.
The only significant policy debate occurred later, when our first membership application came in from government. The board debate ended with a unanimous affirmative vote — with one abstention — adopting an explicit membership policy that reiterated the big-tent philosophy.
VL: Like the membership, the VCOG Board is very diverse. Can you describe that diversity?
FL: From the outset, we wanted a diverse board … one that could establish our credibility as a proaccess, nonpartisan voice for ordinary citizens, attorneys, educators, businesses, and various special--interest groups. FOIA is a citizens’ law, not a journalist’s privilege, and we wanted to drive that point home with our every action. Former Governor Jerry Baliles, a Democrat, and former Governor Lin Holton, a Republican, helped us with the planning. Holton was a charter member of our board; -Baliles publicly endorsed the effort.sch
We also were extremely fortunate to have the backing of Bob O’Neil, a nationally recognized First Amendment scholar who also happened to be a University of Virginia law professor, former president of the same institution, and founding director of the Charlottesville--based Thomas Jefferson Center for the Protection of Free Expression. Bob served six years as VCOG’s founding president, did an extraordinary job of endeavoring to keep me out of trouble, and still sits on our board.
Because the state’s two leading media organizations were providing half of our start-up funding, each initially was given five seats on our fifteen-member board of directors. As we went forward, these founding partners had the good sense to change our bylaws, adding another eight at-large seats for public representatives. Thanks to that foresight, VCOG’s diverse leadership now includes several nationally known scholars, citizen activists, civic leaders, lawyers, and public employees. In years to come, I hope there will be even greater diversity as we become better known, and as more and more Virginians come to understand that open government is at the very foundation of a free society.… most elected and appointed officials have a gut-level understanding that citizens own the government …
VL: How has being strictly bipartisan figured in VCOG’s success?
FL: Fortunately, transparency in government is not a partisan issue, though one would be hard-pressed to see much evidence of nonpartisanship in Washington. While some in local and state government merely give lip service to Justice Louis Brandeis’ reminder that sunshine is the best “disinfectant,” most elected and appointed officials have a gut-level understanding that citizens own the government, not the other way around. A former governor in Georgia summed it up best when he said, “Open government is good policy and good politics.”
At our tenth anniversary observance at the Library of Virginia this past November, Republicans and Democrats joined in saluting our cause. We deliberately selected the library as the venue for our gala, underscoring our close partnership with librarians in supporting a citizen’s “right to know.”
VL: How has an organization funded primarily by media companies avoided creating an adverse relationship with government?
FL: 1. We’ve done our homework (usually!).
2. We’ve picked our shots (always).
3. We’re not a bunch of bomb-throwers (ever).
4. We routinely applaud open-government efforts on both sides of the aisle, even as we condemn excessive secrecy. An annual VCOG award recognizes outstanding public-sector contributions to Freedom of Information. One year the Library of Virginia was given the award for its unwavering battle for a governor’s archival records.
5. Whatever the issue, we strive for consensus, problem-solving, and, most especially, alternatives to litigation.
6. Even when we see somebody breaking the access laws, we’re quick to acknowledge that there are many good people in government trying to do the right thing. Some of them are VCOG members, directors, or both.
VL: What accomplishments would you cite as the most important of your era as executive director?
FL: 1. We’re still in existence(!), notwithstanding our shoestring annual budget of $60,000 to $70,000, soon to increase by $20,000, thanks to our new Endowment Fund.
2. We’ve aided hundreds of citizen watchdogs who may not have heard of VCOG or OIA, but steadfastly battle for public records — whether the issue is neighborhood crime or down-the-street rezonings — and proper meeting notices, agendas, and minutes. We’ve also served as a resource for media when reporters hit FOIA roadblocks.
3. Our state’s FOI statute is better than it was, even if it is still not as good as it should be.
4. At our urging, and with significant help from key legislators in both parties, the General Assembly established our Freedom of Information Advisory Council, an ombudsman-type model for other states.
5. We’ve helped establish coalitions in other states, including those in Tennessee, North Carolina, Pennsylvania, and New Jersey.
6. We aided in the legislature’s successful two-year overhaul of the Public Records Act, working with VLA and the Library of Virginia to try to demystify record retention.
7. We’ve built a website that boasts 35,000 unique visits annually, with a searchable archive of more than 300 access opinions, electronic newsletters, an email hotline, and an automated letter generator that helps Virginians keep government accessible and accountable.
VL: Give us your view of the history of the advisory council, and comment on how it is currently perceived.
FL: Creation of the FOI Advisory Council in the 2000 session of the General Assembly was, in my view, the most significant development of the past decade in moving Virginia to the forefront of open-government states. Our coalition gets at least a little of the credit.
In our early years we looked for innovative approaches that might help us defuse at least some of our perennial legislative battles. At the same time the General Assembly created a seven-member task force, chaired by then-Delegate Chip Woodrum, D-Roanoke, to update the Freedom of Information Act. Among its members were Delegate Joe May, then-Delegate Barnie Day, and then-Senator Bill Bolling, our current lieutenant governor. Midway into the study, we put together our very first statewide conference, with Bolling and Woodrum among our invited speakers, at James Madison’s Montpelier home. Special guests were also on hand from New York, Indiana, and Maryland to talk about their FOIA setups.Just as predicted, it is government agencies and ordinary citizens who use the council the most.
As we’d hoped, all four legislators seized on New York’s small, nonpartisan Open Government Committee as a cheap but effective model, once they heard about it from Bob Freeman, the New York agency’s longtime head. Freeman returned to Virginia twice more, once to describe the work of his office to the press association’s annual news meeting, and a second time to brief the Woodrum Commission on his advocacy work.
Not everybody was convinced. For a day or two, Governor Gilmore wanted the advisory council in the executive branch; at least one legislator wanted it in the office of the attorney general. But Bolling, May, Woodrum, and Day insisted that it be a legislative agency.
Attorneys for local governments feared that the Richmond office would second-guess them whenever a FOIA dispute erupted. Media folks quietly worried that the office would have a built-in bias supporting government secrecy. But we made sure that all the stakeholders would have seats on the council, including the librarian of Virginia. Operational costs for two attorneys assigned to the office were held to $150,000 a year (a couple of lawsuits can easily cost that much). As had been the case with New York’s Committee on Open Government, the council quickly became a facilitator — in effect, serving as a year-round study commission to deal with continuing FOIA issues.
Skeptics succeeded in placing a two-year sunset clause in the enabling legislation; still, a handful of House members voted against the idea. But well before the two-year probationary period was up, the office had proved itself. It gained permanent status on a unanimous vote.
Just as predicted, it is government agencies and ordinary citizens who use the council the most. Of the 1,700-plus inquiries handled by the FOIA office in a recent 12-month period, only 1 in 7 contacts involve media. VCOG cosponsors the council’s training sessions, participates in its various work groups, and occasionally urges council support for a needed FOIA reform. Maria Everett, executive director, is now seen as the state’s leading Freedom of Information expert. An attorney general’s spokesman once said her opinions should be followed unless “plainly wrong” — thus giving the office the support it needed from a key state agency. With one or two exceptions, the consensus has been that her opinions have been plainly right. When the legislature is in session, Everett serves as staff attorney for panels dealing with FOI issues, a “plus” that wasn’t foreseen until she was hired for the job.
To date, FOIAC has been reluctant to take on the active mediation role that Chip Woodrum, now a member of the Library of Virginia Board, had always envisioned for the office. If only to head off adversarial battles and costly lawsuits, that active role still needs to be added to the council’s job description.
VL: Are there any disappointments that concern you at this point?
FL: Too many in state and local government still don’t “get it.” They wring hands over “extra work” caused by FOI requests, as if disseminating information was not an essential part of their job descriptions. Because of bad computer systems, flawed indexing, or a bad filing philosophy, records too often are costly to copy and hard to inspect. Excessive secrecy continues to occur in endless closed meetings, often convened solely to wheel, deal, and avoid political embarrassment.
VL: How does Virginia’s access to government records compare to other states?
FL: Better than most, weaker than some. A University of Florida study ranked us among the top five to ten states, but problems still exist. For instance, disclosure rules for law-enforcement records are replete with loopholes, and record and meeting exemptions that were written decades ago tend to be overly broad. But the commonwealth’s procedural rules rank among the best in the country. Some examples include the quick-response requirements, actual-cost ceilings, sworn closed-meeting oaths, and fast-track requirements for court relief. Existence of the full-time Office of the FOI Advisory Council, now six years old, wins us especially high rankings among the fifty states. In years past, only designated public officials could get FOIA guidance from the Office of the Attorney General, and the guidance sometimes came only after a nine- to ten-month delay. For individual citizens, there was no way to get a ruling on access rights, short of slow and costly litigation.
VL: How can VLA and its members do more to promote citizen access to government information?
FL: First, however self-serving this might seem, I hope VLA — and the law librarians, the genealogists, the state librarian, and the Library of Virginia — will continue in an active partnership with VCOG in defending and promoting Freedom of Information, not just on FOI Day or during Sunshine Week, but all year long.
This is a marathon, not a sprint, and it requires an ongoing, closely collaborative push for greater transparency.
Information is at the heart of your profession. In this Age of Information, library patrons may not need more information, but they sure as heck need quality information. This is especially true for government activity, whatever the level of government. Together, we can help in that information search. The Internet is a great tool that enables local government, including school boards, to post meeting notices, agenda packets, and meeting minutes. Those services are not always easy to find in cyberspace; a good public-access terminal in a local library can easily cure that problem. I’d also urge librarians to display (prominently!) links to the VCOG and FOIA Council websites. The council’s site provides excellent online training materials. Our Citizens Guide to FOIA is available online at http://opengovva.org, and we can also provide printed pocket guides to any library at no charge.
Forrest M. Landon has been executive director of the Virginia Coalition for Open Government since its founding. He will retire June 30, 2007.