Does the government overuse exemptions to withhold information from you? Va. lawmaker, professor weigh in

RICHMOND, Va. -- An out-of-state journalism and podcasting professor said he found out the hard way that getting records from law enforcement agencies in Virginia is no easy task, and one lawmaker believes that may be because government bodies "misuse" discretionary exemptions to public access laws.

Back in the 1990s, David DesRoches said there was a body found on his family's property in Goochland County.

“His body was lit on fire in this patch of woods in front of my parents’ property, and the trees were burned like 15 feet off the ground, so he was doused in some gasoline. So it's a pretty gruesome murder, and nobody ever knew what happened," DesRoches said.

According to the Goochland Sheriff's Office, the incident was connected to a homicide investigated by the Richmond Police Department.

DesRoches said he talked with the department's cold case manager, who reported the case was solved and closed in 2015.

Curious about the investigation and to use it as an example for his students at Quinnipiac University, DesRoches requested the case files under the Freedom of Information Act (FOIA) from Richmond Police.

The purpose of FOIA is to give citizens access to government records that their taxes fund.

"Just so I could get a more detailed analysis of what happened: who, what when. What the 911 call was like, what they said, what they saw, anything that we could get to help me figure out what that process was like from the investigation to the completion," DesRoches said.

But Richmond Police denied the request, citing a FOIA exemption that gives law enforcement discretion to withhold information from people, other than victims and attorneys, even when cases are closed and when investigations and proceedings are finished.

A Richmond Police spokesperson told CBS 6 it was department policy to utilize exemptions for requests for cases involving serious violent crimes and death investigations.

DesRoches said while law enforcement in Connecticut are granted some exemptions, he's never seen one like this before.

“It’s not like in Virginia where they pretty much don't even need a reason. They can just say no, and I think that's pretty extreme," DesRoches said.

Delegate Marcus Simon (D - Fairfax), who chairs Virginia's Freedom of Information Advisory Council, said he's heard consistent feedback from journalists, advocacy groups, and citizens that government bodies overuse discretionary exemptions.

Examples he provided included the Innocence Project who work to exonerate wrongfully convicted people and those who sought answers from the City of Virginia Beach following a workplace mass shooting who faced barriers in their quests for information.

“Exceptions are supposed to be construed very narrowly, and disclosure is the goal," Simon said. "Whenever there's a sort of discretionary exemption from disclosure, the person tasked with sort of responding to the FOIA request, as soon as they sort of hit the point where it says, 'You can stop now, you don't have to disclose,' they do."

When government agencies are faced with applicable discretionary exemptions, they don't have to use them. Applying them is a choice.

But Simon believes it's frankly less work for FOIA officers, who may already have a big workload of requests, to just apply exemptions than take the time to search for, redact, and produce records.

One possible solution to cut down on the government's use of exemptions, he said, is requiring public bodies to explain their denials.

“If there was a situation where I've got this exemption, but now I've got to go through this sort of analysis and lay out all my reasons why I think that the exemption applies here... maybe, then, stopping is just as much work as continuing," Simon said. "Maybe, let's make it so it's less work to disclose, and you'll find that people take a more balanced approach to this.”

DesRoches said while he understands the need to protect certain information, such as active cases and investigations, government secrecy generally leads to increased suspicion.

“There's something to this idea of a culture of secrecy leading to a world in which non-truths become easier to believe because we don't have access to the truth," DesRoches said.

Speaking about DesRoches' request, Simon said, "It's sort of hard to imagine what it is ten years later, on a case that nobody seems to be working on, that could be hurt or damaged by disclosure of the file or giving somebody else an opportunity to take a look at it."

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