Fairfax County convinces state legislators to delay FOIA Bill for further study

Fairfax County officials’ concerns convinced state legislators to examine more closely proposed changes to Virginia Freedom of Information Act rules that are intended to increase transparency in local government decision-making.

The measure, sponsored by state senator Adam Ebbin(D-39), was unanimously approved in the upper chamber of the Virginia General Assembly on January 31.

A subcommittee of House Committee on General Laws voted yesterday (Tuesday), 7-0 to refer the proposal to Virginia Freedom of Information Advisory Council, for review and comments, killing its chances for the 2025 legislative session.

“I think we need to slow down a little bit,” said Del. Marcus Simon (D-13), a member of the subcommittee on procurement and open government, and chair of the FOIA Advisory Council, said: “I feel we should slow this down just a bit.”

He told Ebbin, “I appreciate what you are trying to accomplish — but I don’t wish to rush through it.”

The most important change would have been to require that all measures, including those voted upon by elected bodies such as county board of supervisors, are posted prior to the meeting.

Ebbin said at the hearing of the subcommittee that items added to an agenda after the meeting has begun could be “considered and discussed”, but they would not be acted upon until a future date.

This bill provided for exceptions in matters that were deemed to be “time-sensitive,” however, this phrase raised concerns.

Jason Morgan, a lawyer and parliamentarian who testified during the hearing, said that the wording was “just too vague”. He said that the vagueness of the wording could lead to confusion and abuse by local officials.

Megan Rhyne is the executive director of Virginia Coalition for Open Government. She told legislators that the original language had referred “emergency actions”, but this word was deemed problematic because it has negative connotations.

Virginia Coalition for Open Government (a nonprofit organization that promotes transparency and public access to government proceedings at the local and state level) worked with Ebbin, and other organizations, to refine and develop legislation. The bill was eventually supported by groups such as the Virginia Municipal League, and the Virginia Press Association.

Fairfax and Arlington officials expressed trepidation after the Senate passed the measure.

Arlington County officials were not happy with the provisions relating to executive session actions. After Ebbin agreed with language changes, they took a neutral stance on the bill.

Fairfax County officials opposed the bill in its entirety. Claudia Arko told the House Subcommittee, the county’s leading lobbyist, that Ebbin “listened to our concerns,” yet the measure made the Board of Supervisors uncomfortable.

Arko says that although the language is “meant to provide flexibility,” it could be problematic in legal terms for localities, if actions taken by them were challenged later.

Arko stated that the unintended effects of this situation are a major concern.

She cited a 2023 Virginia Supreme Court decision that invalidated Fairfax County’s massive zoning reform.

The Justices found that the county officials violated open-meeting laws in the 2021 adoption process during the Covid Crisis. Fairfax County Board of Supervisors was forced to hold new hearings, and again adopt the revisions . This is a lengthy process.

Arko pointed out that “there were other situations similar” in jurisdictions throughout Virginia. This left local government officials unsure of how judges might interpret their actions.

Arko requested that the state FOIA Council review the proposal at the hearing and make recommendations. Rhyne said that she was disappointed by the state legislators’ agreement to the request.

Rhyne stated, “I’m disappointed that the FOIA council is handling this case because Fairfax didn’t voice their opposition until Friday last week after the bill was unanimously passed by the Senate.” Arlington was addressed in the alternative, but they did not support the bill. I wish that we had been able to provide some protections against last-minute action this year instead of waiting until the FOIA study was completed.