A Virginia bill intended to "address the concerns of both Virginia's Freedom of Information Act requesters and custodians of records," could impact requests characterized by agencies as harassing or burdensome.

"'The current system overwhelmingly defaults to the side of the custodians and I'm working to bring the pendulum to the center so we have actual balance,' it's sponsor explains.

"Megan Rhyne, executive director of the Virginia Coalition for Open Government, said the legislation faces opposition from local governments and Virginia law enforcement agencies that fear it would encourage abuse of VFOIA laws, including harassment of under-resourced governments.

"'It's a complex issue,' Rhyne said. 'You can't just say harassment is sheer volume because there are things that happen in state and local government that are going to happen that have intense public interest and with that public interest will come an increase in VFOIA filings.'

"The use of FOIA for fishing expeditions has long been a subject of controversy in Virginia and nationally. Some states including Illinois allow governments to sue citizens for vexatious use of FOIA. A decade-long effort to allow Virginia governments to do the same died in 2011 because no one could agree on what constituted harassment, Rhyne said.

"Martin Crim, a Manassas attorney who represents local governments in FOIA matters, testified earlier this year that the proposed legislation 'presents an invitation for individuals angry at local government for any reason to harass the local government and to abuse the law out of spite … each locality I have worked for has had at least one FOIA antagonist at some point who filed multiple document requests for no practical purpose, so it cannot be said that the local governments must have done something to deserve such abuse.'"

Requesters' motives don't matter when it comes to the law, Megan Rhyne responds, "Maybe that person does have an ideological agenda, but VFOIA shouldn't care and government shouldn't care."

Persistence or abuse? The same question is regularly presented in Kentucky. Our law already addresses the dichotomy at KRS 61.872(6).

That statute states, "If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence."

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51391

In construing this statute, Kentucky's highest court has observed:

"The obvious fact that complying with an open records request will consume both time and manpower is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden.

"The fact that [requested records] are voluminous does not mean that it would necessarily be an unreasonable burden for a state agency to comply with an otherwise valid open records request. A record's length, standing alone, is an insufficient reason to exempt it from open records disclosure."

https://caselaw.findlaw.com/ky-supreme-court/1387319.html

The "clear and convincing evidence" standard of proof in the "unreasonably burdensome/harassment" statute is aimed at preventing agency abuse.