Supreme Court Justice Louis Brandeis’ article in the December 20, 1913 edition of Harper’s Weekly is often cited for his maxim, “Sunlight is said to be the best of disinfectants.” The article, entitled What Publicity Can Do, was one of a series of articles he compiled into a book he published; Other People’s Money and How the Bankers Use It. Brandeis asserted that transparency was a necessary reform to check the power of large banks. His theories served as the foundation for the establishment of the Federal Trade Commission.
Just as the FTC is the federal regulatory agency responsible for protecting consumers and promoting competition, the Virginia State Corporation Commission, “is vested with regulatory authority over many business and economic interests in Virginia.” (SCC website) The SCC wields significant power and its decisions are not reviewable by any state entity except the Virginia Supreme Court. As has been said on more than one occasion, “with great power comes great responsibility.” Government has a responsibility to be accountable to its citizens.
Imagine my dismay when I contacted the SCC with a Freedom of Information Act (FOIA) request asking for information on the upcoming Haymarket 230kV Line and Substation Project proposed by Dominion Virginia Power and I was told, “any Staff communications regarding Dominion’s anticipated Haymarket Line filing at the SCC are records related to likely or pending regulatory litigation and, as such, are not public records.” The SCC is the sole government decision authority for whether that line gets built and where it will be located. There is no appeal of that decision except to the Virginia Supreme Court. And because the records are, “related to likely or pending regulatory litigation,” the public has, according to the SCC, no right to review them.
But there is more! In the very next paragraph of the SCC’s response to my FOIA request, I was told “no application has been filed and thus this matter is not currently pending in an open docket before the Commission.” In the course of two paragraphs, the SCC had told me both that the records are related to likely/pending litigation and therefore are not reviewable, AND that there is no currently pending litigation. Virginia Code Section 12.1-19.C.1 states that, “The Commission shall make available for public inspection records related to the administrative activities of the Commission.”
What information did I request from the SCC? Below are the four bulleted information requests contained in my FOIA request dated September 1, 2014:
• “All communications between SCC employees and any other party including but not limited to Dominion Resources, any actual or potential Dominion Resources customers impacted by the line, and all affected landowners regarding The Haymarket Line.
• All schedules, calendars or records of appointments or meetings of SCC employees relating to The Haymarket Line.
• All official documents filed by any person or entity including but not limited to Dominion Resources, landowners, interest groups, or potential customers regarding The Haymarket Line.
• All communications between the SCC and any member of the press relating to the Haymarket Line including but not limited to press releases.”
All of the information requested seemed to be administrative in nature, so I sent a follow-up FOIA request in which I asked for the “specific statutory provision in the Code of Virginia that states ‘likely or pending regulatory litigation’ is exempt from disclosure.”
The Commission’s response cited Section 12.1-19.C.5 of the Virginia Code, which they state, “describes the Commission’s authority to determine the public availability of the Commission’s regulatory records.” How did the State Corporation Commission get the authority to determine which of its records are and are not available with seemingly no oversight and only one venue for appeal (the Virginia Supreme Court)?
In the 2014 Session, the General Assembly passed HB 1036: State Corporation Commission; availability of records. This Act added Subsection C to Section 12.1-19 of the Virginia Code, the same subsection quoted in the SCC response to my FOIA request to justify, “the Commission’s authority to determine the public availability of the Commission’s regulatory records.” Delegate Bob Marshall was among those voting against increased SCC transparency by voting for this bill. Why would Marshall vote against transparency? A lack of transparency fosters skepticism and distrust.
Transparency is necessary to good governance. We, as taxpayers, should expect that government organizations are operating in our best interest and that their actions and processes are reviewable and verifiable. Transparency builds trust and ensures accountability.
The proposed Haymarket Line will affect a significant number of residents in the Haymarket-Gainesville area. As it stands right now, after the SCC staff completes a process for which there is little oversight, the three SCC Commissioners (none of which has any significant ties to the area) will decide if and where the Haymarket Line will be built. Does that sound like good government to you?
Don Shaw is a resident of Gainesville, VA. He is running for Delegate in the 13th VA House District. You can learn more about his campaign at http://www.shawfordelegate.com.