Getting elected to public office, at any level of government, can be an exciting and heady experience, but election comes with a whole new set of rules, especially about what is yours, and what belongs to the public entity. That’s what former President Trump was advised, repeatedly, and what untold numbers of elected officials and public employees have practiced during their tenure. In most situations, what you do to carry out your official duties – be it emails, letters, handwritten notes, recordings, or any other documentation – is work product, subject to certain rules and regulations, depending on the level of government.
Under the Presidential Records Act of 1978, nearly every slip of paper, electronic communication, etc., of a president is historic, and must be preserved for the presidential archives. Of course, any national intelligence documents must be handled even more carefully and specifically, and never become personal property of any elected official, not even a president of the United States.
Fairfax County does not have national intelligence documents, but has a myriad of rules and responsibilities for its employees, including members of the Board of Supervisors. The mere fact of running for office means filing of periodic campaign finance reports and, if you win, an annual financial disclosure of everything you (and family members living in your house) own. Not timely filing of the annual report may be subject to sanctions. Essentially, everything an elected official does is subject to public scrutiny. The Virginia Freedom of Information Act (VFOIA) identifies procedures for the public to access county documents and work product. A request for information does not have to mention VFOIA directly, but most requests now are considered VFOIA-able, even though sometimes it might be easier to answer a simple direct question with a simple direct answer. When most county business was done on paper, a VFOIA request required going through lots of files by hand, examining each piece of paper to determine if it was responsive to the inquiry, and keeping track of staff time to bill the requester. Today, most files are electronic, so a few key words can search thousands of documents quickly, but each of those documents must be examined by staff to determine if they meet the definition of a “public document” under the act. When a VFOIA request was made for three years of my appointments calendar, I could have redacted personal appointments and family engagements, but that would have taken a lot of time, for which the requester would be charged, so I simply provided everything on paper. The only charge was for copying. Whether they were awed by the breadth or disappointed in the mundane, I never heard from them again.
A recent VFOIA request asked for documents from multiple agencies and staff for the period of 2016 to 2022. More than 40,000 documents were identified, and billable costs could amount to thousands of dollars, so the requester may be asked to revisit the scope of the inquiry. In another case, a VFOIA requester asked for all emails and documents that mentioned him or his street address. When the search was completed, all he got were copies of his own emails and correspondence with the county, essentially communications that he had generated.
VFOIA applies to almost all paper and electronic communications of a public official, but it does not include unwritten communications, such as a telephone conversation (unless the conversation was recorded and transcribed) and does not require the official to explain any comments made in the requested documents. No “what did you mean by that” or “why did you say that.” Just the documents,
Ma’am. Let the documents speak for themselves.
Penny Gross is the Mason District Supervisor, in the Fairfax County Board of Supervisors. She may be emailed at mason@fairfaxcounty.gov.
