Government business is presumed to be public business, with a public right to know.
Inherent harm is done whenever the government keeps a secret, and that must be weighed against the harm of disclosing information publicly.
Therefore, the exemptions to the Virginia Freedom of Information Act must be used to the absolute minimum extent necessary. Every new rule should be examined in this light.
Parts of the new rule are justifiable, although not necessary.
However, the last sentence of the new rule is especially pernicious and serves only to punish supervisors who speak out when they see misconduct in closed session.
I have been making some county supervisors very uncomfortable lately.
I have been hearing feedback—shall we say—about the articles “New Board to Clamp Down on Information Access, Switch Up Rules” and its follow-up after the vote, “Loudoun Supervisors Adopt New Meeting Secrecy Rule.”
The Loudoun County Board of Supervisors has adopted a new provision in its Rules of Order, which reads in full:
“Documents, information and discussions from a closed session, attorney-client privileged communication and other confidential information shall not be disclosed without the approval of the Board. In the event confidential or privileged information is released or otherwise disclosed, without the consent of the Board, then the Board shall vote to either authorize the disclosure or reaffirm the confidentiality and/or claim of privilege. In addition, the Board may, in its discretion, sanction or censure a member for improper disclosure of confidential or privileged information.”
Emphasis mine.
Let’s talk about why my articles on this are written the way they are, why I emphasize that one sentence, and why this is such a bad rule.
Here’s how this action should be understood.
First, everything the government does is presumed to be the public’s business and within the public’s right to know—after all, power in our government comes from the people investing that power in their representatives, and the budget comes from our taxes. Democratic government is shaped by voting, and voting is only meaningful if it is informed voting, and voters need to know what their representatives are doing to cast informed votes.
Keeping secrets is the first step for those in government tipping the balance of power against the voters and in their own favor. There is inherent harm done any time the government keeps a secret from the people.
Second, Virginia actually already has a pretty porous sunshine act. The Virginia FOIA Advisory Council counts more than 100 exemptions to the state’s Freedom of Information Act. Quite frankly, any time a public body seeks to go beyond Virginia’s already-permissive exemptions to government transparency rules, we—and any responsible news media—are going to make that uncomfortable for them.
Third, it is important to note that there is almost never a time when public officials are required to keep something secret, a dangerously incorrect interpretation of the law that I have heard repeatedly from some very smart people in government. Almost every exception to sunshine laws is voluntary, which means almost every time public officials hide something from the public, it is because they have chosen to do so.
(I refer you here to a previous post on this topic: http://www.renssgreene.com/loudoun-view/2017/4/29/about-those-foia-exemptions.)
I acknowledge there are times when it is in the public interest to temporarily keep a secret, the most common examples being cases in which an elected body is in some sort of adversarial conversation where discussing their strategy publicly would put them at a disadvantage—real estate negotiations, for example, or court cases.
In this way, the exceptions in the Virginia Freedom of Information Act which allow public bodies to meet behind closed doors seem to present an unavoidable and intractable problem for government transparency. On the one hand, they are in certain circumstances necessary—otherwise taxpayers would be sinking ungodly amounts of money into real estate and lawsuits, since the government would be handicapping themselves by discussing their strategies publicly. On the other hand, there are no publicly-accessible records of those closed sessions, so we have only the word of the people in those meetings that only legally-permissible topics were discussed, and that only the narrowest necessary exemptions to transparency laws were exercised.
In my experience, even the most well-intentioned public officials tend to err toward keeping the secret, because things look different from the top floor of the Loudoun County government center. Nobody thinks they’re the bad guy, and the slow degradation of government transparency and democracy is not typically carried out by cackling villains—just people who keep erring on the side of the wrong type of caution. There are always reasons to keep secrets.
Given the harm that is done when the people’s business is hidden from them, whenever the government contemplates keeping something secret, that harm must be weighed against the harm done by disclosing that business publicly. That an exemption to government transparency is legally allowed should not mean our government officials automatically take it.
Considering all of this together, it should be clear that public bodies are obligated to use those exemptions to government transparency to the absolute minimum extent necessary.
The Problem With the Rule
All of that said, there is, in fact, a pretty defensible rationale for most of this new rule. County Attorney Leo Rogers (a hotshot of a county attorney if ever there was one, it must be said—I have enjoyed learning about his career gamboling across the state, outmaneuvering and frustrating Dominion Energy wherever he goes) explained to me that it has become apparent that public bodies can accidentally waive their attorney-client privilege and make documents public by simple inaction. He cited two cases: Chase v. City of Portsmouth, a 2006 federal case, and Walton v. Mid-Atlantic Spine Specialists, a 2010 case on which the Virginia Supreme Court ruled partially before sending the case back down to the lower state court.
In Chase, the plaintiffs sued the city for denying their application to renovate and reopen a vacant building as a church. Before the council voted, the city attorney had written a letter to them advising that they risked a lawsuit if they turned down the application.
One council member discussed that letter in open session. Critically, when it came to a lawsuit, the court ruled that in part because nobody else on council objected when that member started talking about it publicly, the council had waived the attorney-client privilege protecting that letter from discovery. When attorney-client privilege is breached, the parties must take some sort of affirmative action to reassert their claim to privilege.
Walton is a medical malpractice suit. During discovery, the defense apparently inadvertently provided the plaintiffs with a letter from a doctor at Mid-Atlantic Spine Specialists to his attorney, admitting he may have made a mistake examining a patient. The defense then sought to keep that letter out of the trial, asserting attorney-client privilege. The state Supreme Court ruled they had waived attorney-client privilege by failing to take reasonable actions to ensure the confidentiality of the letter, overturning a decision by the lower court.
The new rule gets at the problem highlighted by these two cases by causing the Loudoun board, if they find out that something from a closed session has been disclosed publicly, to vote either to agree to releasing it publicly or to reassert their claim that that information should be confidential. Theoretically, that should—at least in a court setting—help restore attorney-client privilege and keep those documents away from a jury.
The thing is, both of those cases also contain their own rebuttal: In Chase, the court decided that the letter was protected from discovery anyway under the “work product” doctrine, which protects materials prepared in anticipation of a lawsuit from discovery—so the exemption for consulting with legal counsel was in this instance duplicative, at least as far as the courtroom was concerned.
And in Walton, the state Supreme Court found the lower court’s decision to let the doctor keep his letter out of the record allowed the defendant’s attorney “to engage in questioning that had significant potential to mislead the jury,” demonstrating the danger of letting people decide their own exemptions to transparency.
“Parties should not be permitted to use the privilege as both a shield, preventing the admission of evidence, and as a sword to mislead the finder of fact by allowing evidence that would be impeached by the privileged information if it had not been suppressed,” the court wrote, and although Mid-Atlantic Spine Specialists is by no means a public body, that is a useful framework for thinking about government bodies hiding information from the public.
More to the point, the truly pernicious part of the new rule is really the last sentence: “The Board may, in its discretion, sanction or censure a member for improper disclosure of confidential or privileged information.”
To what end? The claim of privilege has been asserted already. The only purpose of this vote is to punish a colleague on the Board of Supervisors for talking about what happened behind closed doors. Let’s give the new Board of Supervisors absolute credit for being absolutely well-intentioned—there are situations where they may want to censure a colleague for speaking outside of that privilege. Say—as has been suggested to me by a current supervisor—a member talks to a developer with an application before the board about what has been discussed in closed session. That is a reasonable time to sanction or censure a colleague. Do we write all our rules for a best-case scenario?
I’ll excerpt a passage from my boss’s excellent editorial in last week’s paper, which I think highlights the problem here:
“If members believe the material or information being discussed should be in the public domain or is improper for secret talks, they have a duty to make those objections. It is not unprecedented for an elected official to refuse to participate in a closed meeting because of such concerns.”
The new rule, up to its last sentence, is not necessary—supervisors don’t actually need it to take a vote reasserting their claim to privilege—but probably not especially harmful either in its practical effect. But the last sentence only serves to lay out the case for a board acting in bad faith to punish one of their number for having a crisis of conscience and speaking out.
So this is what I put to the new Board of Supervisors: Perhaps those articles are uncomfortable to read not because I (and my editor-in-chief) have suddenly, after a career of thoughtful, conscientious and fact-oriented reporting, decided to come for you. Maybe they’re uncomfortable because this rule demonstrates unusually bad judgment by the Loudoun County Board of Supervisors and their almost invariably excellent senior staff. Maybe it’s because, written in the way that I have, those articles point out the glaring problem with the new rule.