Sen. Dave Marsden, D-Fairfax, is inviting stakeholders to an event to help craft legislation. In the invitation, he tells them that the conversations will be included with his working papers to keep them private and safe from being viewed under the Freedom of Information Act (FOIA). He also instructs the invitees to keep the information private.
FOIA advocates say it is unusual to say this upfront and try to control what private citizens and government actors do with the information.
“We invite you to the first planning meeting in advance of our Fall 2024 Virginia Clean Economy Act (VCEA) Summit,” Marsden says in the invitation. “These meetings and your feedback will be part of the confidential working papers as I consider legislation… My intent is to keep the shared records confidential pursuant to the working papers and correspondence exemption, Code § 2.2-3705.7 (2), and for that reason any documents created for my personal or deliberative use as a Senator should not be disseminated or used for other purposes.”
In a statement to Virginia Scope, Marsden says this is standard so that stakeholders can be candid in discussions.
“It would be standard process for these types of conversations with stakeholders to be considered working papers for potential legislation so that they can be candid with any feedback,” Marsden wrote in an email. “This is an information gathering exercise, and my priority is getting a better understanding of progress or challenges four years after we passed the VCEA. If I introduce any legislation as a result of this process, it will be to strengthen and support the VCEA.”
Megan Rhyne, the director of the Virginia Coalition for Open Government, says she has never seen anything like this.
“I’ve never seen someone go to such lengths to try to control what private actors do with their information,” she said in an interview.
Rhyne says that while bringing stakeholders to the table for conversations about how to legislate is a good idea because it helps everyone hash out issues to try and move forward, not allowing those people at the table to discuss the matter once they leave doesn’t make sense.
“It seems counterintuitive,” she says. “Every member of that stakeholder group has their own stakeholders. I think that the implications are much farther reaching than just saying, ‘Hey, you individual member, don’t spread your work around.’”
Legislators can release working paper information if they want to, but the exemption protects them from being forced to provide it if requested.
“We prefer to see people evaluating FOIA requests on a case-by-case basis based on content, and not just saying, ‘These will be withheld as my working papers,’” Rhyne says.
Marsden faced a FOIA lawsuit from Josh Stanfield and lost in circuit court last year. The judge said that Marsden violated the working papers exemption law, but he “did not knowingly or willfully make this technical violation.”
“It’s very on brand for Senator Marsden – who a circuit court judge found violated my rights under FOIA – to now solicit legislation from lobbyists under the secrecy provided by Virginia’s weak FOIA law,” Stanfield said in a text message Wednesday.
