By Megan Rhyne

There’s a bill on offer in the Michigan legislature that would make the state’s Freedom of Information Act applicable to both the governor and the legislature.

I wish the Michiganders well. Getting lawmakers and a governor to voluntarily expose themselves to the glare of the open records light is an uphill battle. It’s one of those issues where lawmakers have trouble seeing the forest of good government through the trees of their own self-interest.

Virginia waded through that battle years ago and miraculously came out on the other side with both the executive and legislative branches subject to FOIA. This is a good thing, and I’m proud that my home state sees the light.

But look closely and you’ll see that what we have now in Virginia is a big old mess, largely due to the so-called “working papers exemption.”

The exemption applies to records “prepared by or for” a list of named people “for his personal or deliberative use.”

The idea, of course, is that we want our leaders to be able to collect information from all sources, and then make the best decision. People will presumably feel freer to offer up ideas if they know their dumb ones won’t be splashed across the front page.

But Virginia’s working papers exemption has problems: It has been extended to a long and growing list of individuals, and it also covers all of their correspondence.

Those who can take advantage of the exemption include “the Office of the Governor; Lieutenant Governor; the Attorney General; the members of the General Assembly, the Division of Legislative Services, or the Clerks of the House of Delegates and the Senate of Virginia; the mayor or chief executive officer of any political subdivision of the Commonwealth; or the president or other chief executive officer of any public institution of higher education in Virginia.”

Under the General Assembly, there are legislative aides, and under the office of the Governor there’s the chief of staff, counsel, director of policy, cabinet secretaries, the Assistant to the Governor for Intergovernmental Affairs and “individuals to whom the Governor has delegated his authority.”

We’re talking several hundred people here conducting the public’s business in near-total, sanctioned secrecy.

Folks who can use the working papers exemption are likely going to fight hard to keep it. So what may ultimately prove to be a more productive conversation is how the existing exemption can be reined in.

When FOIA was revamped in 1999, the working papers exemption was targeted for a rewrite, in part to counter a practice that had developed during the Allen administration, where ordinary records were stamped “Governor’s Working Papers” to keep them out of the public’s hands.

The late Delegate Chip Woodrum was on that FOIA rewrite team, and said the exemption’s purpose was to allow withholding if release would interfere with government function, not to give officials an excuse to deny requests.

But that is what has happened.

Worried about heavy-handed lobbyists, corporate donors or special-interest groups trying to curry favor with an official? Concerned that an official is pressuring employees to pursue questionable projects? You’ll be hard-pressed to gain insight with the limitless working papers/correspondence exemption in the picture.

It is simply unacceptable in a representative democracy to leave the public in the dark about these individuals’ performance. Investigative journalists may be able to help shed some light, but otherwise we’re left with our government officials essentially telling us that we’re going to have to trust them, because they aren’t going to show us their records.

Leviathan is alive and well in Virginia. It is well past time for this monster to be tamed.

Megan Rhyne Rhyne is executive director of the Virginia Coalition for Open Government. Email her at mrhyne@opengovva.org.