FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
April 8, 2003, Richmond
The Freedom of Information
Advisory Council ("the Council") began its meeting with a
legislative update recapping the FOIA and related access bills
passed during the 2003 Session. Nineteen bills amended FOIA,
including the creation of eight new meetings and records exemptions
and the expansion of eight existing meetings and records exemptions.
Several other bills did not amend FOIA directly, but addressed
Both bills recommended
by the FOIA Council were passed. Senate Bill 737 (Houck) was
the result of the subcommittee studying FOIA and the Virginia
Public Procurement Act and Senate Bill 738 (Houck) was a recommendation
of the subcommittee studying HB 900 (Purkey, 2002). A complete
listing and description of FOIA and other related access bills
considered by the 2003Session of the General Assembly is available
on the Council’s website.
to the Council for Study
The following five
bills were referred to the Council for study by the 2003 Session
of the General Assembly:
House Bill 1649
Freedom of Information Act; charges. Provides that
if a requester specifies in writing that he desires to
be notified if the charges for his request exceed a specified
amount, the public body shall suspend processing the request
and notify the requester if the public body determines
that the charges will exceed the specified amount. The
period within which the public body shall respond under
this section shall be tolled for the amount of time that
elapses between the notice by the public body and the
response of the requester.
House Bill 1797
Freedom of Information Act; closed meetings; disclosure
of closed meeting discussions. Provides that a public
body may, by agreement of a majority of its members, adopt
a rule prohibiting and providing appropriate sanctions
for the disclosure by any member of information discussed
in a closed meeting of the public body lawfully convened
in accordance with § 2.2-3711 and § 2.2-3712 until such
time as the subject of the closed meeting is made public
by the public body.
House Bill 2626
Freedom of Information Act (FOIA); requests by inmates.
Removes the provision that denies access to records to
persons incarcerated in any state, local or federal correctional
facility. As a result, inmates will have a right of access
to records under FOIA.
House Bill 2664
Freedom of Information Act; closed meeting procedures;
notice. Provides that the notice provisions of the
Freedom of Information Act shall not apply to closed meetings
of any public body held solely for the purpose of taking
testimony or the presentation of evidence concerning the
disciplining of any student or employee of any state school
system. Currently, notice is not required for closed meetings
of any public body held solely for the purpose of interviewing
candidates for the position of chief administrative officer.
House Bill 2665
Freedom of Information Act; closed meetings to discuss
threats to public safety. Expands the closed meeting
exemption for discussions relating to terrorist activity
to include other types of threats to the public safety.
The Council discussed
the development of a study plan for the bills referred to
the Council for study. Staff presented three study plan options:
the Council could utilize informal workgroups, as it has done
in the past; form subcommittees, an approach that would be
slightly more formalized than the workgroup approach; or allow
the full Council to consider the bills at bill-specific meetings.
It was decided that the Council would invite the patrons of
each bill to present the bills and any relevant background
at the next meeting, and then subcommittees could be appointed
to conduct the studies and report back to the full Council.
of Process for Review of Legislative Proposals
The Council discussed
what its role should be in receiving other legislative proposals,
aside from those referred to it by the General Assembly. The
Council deliberated on whether it should provide a forum for
people to present proposals or whether it should be more actively
involved in deciding whether a proposal furthers an appropriate
public policy or needs further study. The question was also
raised as to whether the Council should proactively identify
"global" access issues for discussion. After lengthy discussion
and the receipt of public comment, it was decided to approach
legislation and global access issues on a case-by-case basis.
The Council will advertise the Council as a forum for presenting
legislative proposals as a sort of legislative preview. The
Council may then decide on a case-by-case basis which, if
any, of those proposals it wishes to discuss further, or whether
there are any general areas of interest that the Council wishes
It was suggested
that the Council set an example by creating a publicly accessible
repository for all Council business conducted by e-mail. Concerns
were expressed by Council members that before starting such
a project, the relationship between FOIA and email should
be examined. It was noted that the classification of e-mails
is often a very confusing area of the law. The Council adopted
this as a global access issue for further discussion. The
Secretary of Technology will be invited to the next meeting
to discuss the capabilities of technology for state agencies
and to address other relevant technology issues.
Staff briefed the
Council on its plans to conduct FOIA workshops at six locations
around the state the second and third weeks of July. In addition
to holding the workshops at community colleges, as has been
done the past several years, staff will also look into the
feasibility at holding sessions at other state institutions
of higher education. The program tentatively will include
segments addressing access to records and meetings, a segment
to discuss "hot topics" such as access to social security
numbers and on-line records, and the new terrorism-related
exemptions, and a segment about law enforcement records. Cost
to attend the workshops will likely be around $30.00 to cover
travel and expenses. The fee will include lunch and continuing
legal education and law-enforcement credit for participants.
Staff advised the
Council that law enforcement agencies should be commended
for making FOIA training a priority. In connection with the
Virginia FBI National Academy, nearly 200 law enforcement
officials from 60 agencies have received FOIA training and
copies of the Law Enforcement Guide to FOIA.
the latest statistics of the services rendered by Council.
Since its meeting in November through April 4, 2003, the Council
has answered 377 inquiries, including 15 written opinions.
Six written opinions were provided to government, three to
citizens, and three to media. 145 informal responses (via
phone or email) were provided to government, 140 to citizens
and 77 to media.
Public comment was
received on several topics. The first comment related to House
Bill 2445 and Senate Bill 1149 that excluded the Sexually
Violent Predator Commitment Review Commission from the provisions
of FOIA. It was suggested that instead of excluding the Commission
from FOIA completely, an exemption to address the need for
the protection of certain Commission records and meetings
from public disclosure be created. The Council was also apprised
of an upcoming symposium about secret adoption records. A
citizen expressed concern over VIPNet's contract with Game
& Inland Fisheries that allows VIPNet to sell information
about people who have fishing and hunting licenses. Another
citizen suggested that FOIA be clarified to ensure that informal
telephonic assemblages are covered by the open meeting provisions,
and that the new procurement exemption be narrowed. Finally,
comment was heard from the Virginia Coalition for Open Government
relating to recent policy statements by its board of directors
relating to FOIA issues.
The next two meetings
of the Council have been tentatively set for Monday, June
2 at 2:00 p.m. in House Room D and Monday, September 15 at
2:00 p.m. in House Room D.
The Honorable R.
Edward Houck, Chair
Maria J.K. Everett, Executive Director