VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

March 23, 2005, Richmond

The Freedom of Information Advisory Council (the Council) held its first quarterly meeting of 2005¹. The purpose of the meeting was to review legislative changes to the Freedom of Information Act (FOIA) made by the 2005 General Assembly, identify topics for study, including bills referred to the Council for further examination, and to develop a study plan for this year's work.

Legislative Update

The 2005 Session of the General Assembly passed a total of 12 bills amending FOIA. SB 711 (Houck), recommended by the Council amended the requirements for electronic meetings². SB 711 was incorporated into the nearly-identical bill recommended by the Joint Commission on Technology and Science (JCOTS), SB 1196 (Newman). SB 1196/SB711 passed as a joint recommendation of the Council and JCOTS. Of the 12 bills, six bills created new record exemptions to FOIA: HB 2399 added an exemption for 911 or E-911 subscriber data collected by local governing bodies; HB 2729 added an exemption for records of active investigations conducted by the Department of Criminal Justice Services of certain of its licensees; HB 2404 added an exemption for proprietary records of local wireless service authorities; SB 959 added an exemption for proprietary records of local public bodies providing telecommunications and cable television services; HB 2032 added an exemption for the Statewide Alert Network program records; and SB 1157 added an exemption for records of the Judicial Inquiry and Review Commission. Two of these six, HB 2404 and SB 959, also create new closed meeting exemptions corresponding to their respective records exemptions.

In addition to SB 1196/SB 711 discussed above, four other bills amended current exemptions under FOIA: HB 2516 and SB 1109, which are identical, made technical amendments to existing provisions concerning minors' health records; SB 1023 made a technical amendment to the existing provision concerning involuntary admission records as part of the re-codification of Title 37.1 as Title 37.2; and SB 752 extended the sunset provision for electronic meetings held by the Board of Visitors of the University of Virginia.

One other bill, HB 2930, addressed voting security matters involving the State Board of Elections and local electoral boards, and also created a new closed meeting exemption within FOIA. In amending Title 24.2 (election laws), HB 2930 also exempted certain records from disclosure under FOIA and provided that "site visits" are not "meetings" subject to FOIA. A complete listing and description of FOIA and other related access bills considered by the 2005 Session of the General Assembly is available on the Council’s website.

Bills Referred to the Council for Study

The following three bills were referred to the Council for study by the 2005 Session of the General Assembly:

HB 1733 (Cosgrove); Freedom of Information Act; record exemption for certain email addresses. Revises a current exemption for personal information, including electronic mail addresses, to allow the withholding of such information unless the subject of the record waives the protections afforded by the exemption. Currently, the presumption is that the record is open unless the subject of the record indicates that the record should not be released.

HB 2672 (Plum); Virginia Freedom of Information Act; meetings exemption. Amends an existing meeting exemption to allow for closed meetings to discuss records exempt from public disclosure relating to the Public-Private Education Facilities and Infrastructure Act (PPEA).

HB 2760 (Reese); Freedom of Information Act (FOIA); electronic meetings. Allows local public bodies to conduct meetings under FOIA through electronic communication means (telephone or audio/visual). Currently, only state public bodies may conduct meetings in this manner.

The Council discussed the issues raised by each bill. The Council was advised that Delegate Plum had requested a representative of the Virginia Information Technologies Agency (VITA) to present the HB 2672 on his behalf. In requesting that HB 2672 be referred to the Council, Delegate Plum wrote that the bill was introduced to address a need brought to his attention by the Information Technology Investment Board, which wanted to meet in closed session to discuss confidential proprietary records submitted to VITA as part of a procurement proposal under the Public-Private Educational and Infrastructure Act (PPEA). Inclusion of such discussions under the PPEA would expand the current closed meeting exemption now available to public bodies under the Public-Private Transportation Act (PPTA). The Virginia Press Association (VPA) stated that it had no problem with the bill itself, but was concerned with how the current record exemption for PPEA and PPTA proposals was used to withhold more records than are authorized under the exemption. This concern was also shared by the Virginia Coalition for Open Government and the Associated General Contractors of Virginia. The Council agreed to appoint a subcommittee consisting of Council members Axselle, Edwards, and Hallock to examine the issues identified. It was mentioned that in connection with SB 1107 (Stosch), a work group would be formed to revise the model guidelines for the PPEA. The Council directed staff to monitor the SB 1107 work group and report to the Council subcommittee on HB 2672.

With regard to HB 2760, the Council was advised that the patron, Delegate Reese, who was unable to attend this meeting, wanted an opportunity to discuss HB 2760 with the Council at its next meeting. The Council appointed a subcommittee consisting of Council members Edwards, Fifer, Miller and Wiley to discuss the appropriateness of expanding authorization for the conduct of electronic meetings to local regional authorities and other local public bodies.

Other Business

Staff raised several issues for the Council's consideration. The first issue concerned whether a mandated fifth response to a FOIA request--the requested records do not exist-- was needed. Currently under FOIA, a public body is under no obligation to create records that do not exist in response to a specific request nor is a public body required to respond to a requester if the requested record does not exist. The lack of a required response in these instances leads to confusion and exacerbates any feelings of distrust. The Council, in a written opinion (AO-16-04) has previously opined that a public body should make this written response where applicable in order to avoid confusion and frustration on the part of the requester. The Council directed staff to examine this issue more fully and present a proposal for the Council's consideration.

The next issue discussed was the production of public records under FOIA versus the production public records under licensing agreements with VITA. When the Virginia Information Providers Network Authority (VIPNET)³ was originally created, language was included that clarified the responsibilities of public bodies for the production of records made under FOIA and those "value added" records produced through VIPNET and subject to a licensing agreement with the requester. In 2003, when VITA was created, the referenced language was repealed because of the incorporation of VIPNET into VITA. During the 2005 Session, SB 1027 dissolved VIPNET as a separate division within VITA. Reinstating the original language relating to the responsibilities of public bodies to produce public records may help eliminate confusion and clarify obligations for the production of records. Staff noted that language was added to SB 1027 that may already speak to the issue of production of public records in response to a FOIA request. The relevant language in SB 1027 states that "Nothing ... shall be construed to prevent access to public records pursuant to Virginia Freedom of Information Act...under the terms and conditions set forth in § 2.2-3704." The Council agreed that clarification of the obligations of public bodies in responding to FOIA requests in light of any licensing agreements with VITA would be advisable. The Council questioned whether the solution should be a legislative one or an administrative one through training and/or production of guidance documents by the Council. The Council directed staff to work with VITA on preparing such a guidance document for dissemination to the various state and local public bodies.

The Council next discussed charges for databases under FOIA (subsection J of § 2.2-3704) and other laws, and examined the apparent disparate provisions in the Code of Virginia. (e.g. § 2.2-4008). Specifically, subsection J of § 2.2-3704 provides "Every public body of state government shall compile, and annually update, an index of computer databases that contains at a minimum those databases created by them on or after July 1, 1997. ...Such index shall be a public record and shall include, at a minimum, the following information with respect to each database... a schedule of fees for the production of copies in each available form." Further, § 2.2-4008, relating to availability of guidance documents under the Administrative Process Act, provides "...Each agency shall also (i) maintain a complete list of all of its currently operative guidance documents and make the list available for public inspection... and (iii) upon request, make copies of such lists or guidance documents available without charge, at cost, or on payment of a reasonable fee." Note that the requirements under § 2.2-3704 F of FOIA are that a public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. These variations in language are confusing to both public bodies and requesters alike in what is an allowable charge. Council staff stated that it has received many inquiries concerning allowable charges for databases. Staff suggested that one solution may be to specifically reference subsection F of § 2.2-3704, which will clarify the allowable charges for these databases and guidance documents. The Council agreed that charges for the production of public records, including databases, should be addressed uniformly in the Code of Virginia and governed by FOIA. The Council asked staff to prepare a guidance document on allowable charges for the production of public records and post it on the Council's website. The Council did acknowledge that perhaps a legislative change may be indicated, and that should the Council recommend other FOIA legislation to the 2006 Session of the General Assembly, resolution of this issue be included.

The final issue raised by staff concerned existing FOIA provisions relating to release of administrative investigations of various mental health agencies, specifically, subdivisions 3, 5, and 8 of § 2.2-3705.3 and subdivision 1 of § 2.2-3705.5. This issue came to light as staff prepared for FOIA training for the human resource personnel at the Department of Mental Health, Mental Retardation, and Substance Abuse Services (DMHMRSAS). One of the issues for which training was requested was the release of employee information in cases of investigations of patient abuse or neglect. The referenced exemptions all provide that reports of completed investigations were open under FOIA except for patient identifying information and the identities of persons supplying information. What was not clear was that some of the exemptions also included protection of "other individuals involved in the investigation" --other exemptions did not. Specific concerns raised by staff included (i) whether the language "or other individuals involved in the investigation" includes protection for the employee accused of the abuse or neglect and (ii) whether public policy grounds for different (although similarly focused) agencies that investigate these cases exist to explain the differing standards for release of information from inactive investigations? The Council suggested that staff confer with representatives of the Department of Mental Health, Mental Retardation, and Substance Abuse Services, the Office of the Inspector General, and the Virginia Office of Protection and Advocacy regarding their respective exemptions.

Report on Sunshine Week

The week of March 13, 2004 was designated as Sunshine Week and various articles and reports were published to inform the public of its right to know. The Council heard from representatives of the print and broadcast media as well the Virginia Coalition for Open Government (VCOG). The VPA indicated that Sunshine Week was a national multimedia effort to raise the public's awareness of its right to know about the operation of government. VPA indicated that Virginia had seven representatives on the national Sunshine Week steering committee. VPA displayed "tear sheets" from newspapers around Virginia revealing the extent and nature of the articles published on FOIA, the Council, and public access generally. The VPA reported that newspapers also used online questions and answers, editorials, and editorial cartoons as part of Sunshine Week. It was reported that newspapers are still receiving feedback from the public in the form of letters to the editors commenting on the value of the Sunshine Week. The Virginia Association of Broadcasters (VAB) commented that their membership took a two-prong approach to Sunshine Week--educating themselves about public access and educating the public. Coverage of Sunshine Week by the VAB included email updates and public service announcements on both radio and television. VCOG reported that as a result of Sunshine Week, there has been increased awareness of the Council, its role, and FOIA generally. Virginia is ranked as one of the top ten states for effective FOIA laws. Plans for a 2006 Sunshine Week are being made, including a proclamation from the Governor.

Of Note

Staff reported that for the period December 1, 2004 through March 22, 2005, it had received a total of 494 inquiries. Staff noted that this number is a significant increase when compared to previous years⁴. Of the 494 inquiries, 12 have been requests for formal written opinions and the remaining 482 inquiries coming from telephone and emails. Citizens accounted for 204 of the informal inquiries, the government for 198 inquiries, and the media for 75 inquiries. Of the formal opinions, the breakdown was nine requests of citizens, two from government, and one from the media.

Staff also advised that plans were being made for the Council-sponsored symposium on children's records, where the various state and local agencies holding records concerning children would make presentations about their respective records and whether release is restricted. The ultimate goal of the symposium is the compilation and publication of the various statutes relating to access to children's records. Staff also stated that planning has begun for annual statewide FOIA workshops to be held in late summer at five statewide locations.

Future Meetings of the Council

The Council set its next two meeting dates. The next meeting of the Council has been set for Wednesday, June 15, 2004 and Wednesday, August 31, 2005. These meetings will begin at 1:00 p.m. and will be held in Richmond.

The Honorable R. Edward Houck, Chair
Maria J.K. Everett, Executive Director

¹ Council members Griffith, Axselle, Edwards, Fifer, Hallock, Hopkins, Miller, Moncure, Wiley and Yelich were present. Council members Houck and Bryan were absent.
² SB1196/711 reduces the notice required for electronic communication meetings from 30 days to seven working days. The bill also (i) eliminates the 25 percent limitation on the number of electronic meetings held annually; (ii) eliminates the requirement that an audio or audio/visual recording be made of the electronic communication meeting, but retains the requirement that minutes be taken pursuant to § 2.2-3707; (iii) allows for the conduct of closed meetings during electronic meetings; (iv) changes the annual reporting requirement from the Virginia Information Technology Agency to the Virginia Freedom of Information Advisory Council and the Joint Commission on Technology and Science; and (v) expands the type of information required to be reported. The bill specifies that regular, special, or reconvened sessions of the General Assembly held pursuant Article IV, Section 6 of the Constitution of Virginia are not meetings for purposes of the electronic communication meeting provisions. The bill also defines "electronic communication means."
³ VIPNET is a division within VITA.
⁴ Totals for 2004 were approximately 300 to 325 inquiries per quarter.