VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

June 12, 2002, Richmond

The Freedom of Information Advisory Council (the "Council") unanimously elected Senator R. Edward Houck as chair of the Council and newly appointed Delegate S. Chris Jones as vice-chair. Senator Houck and Delegate Jones will each serve two-year terms in this capacity in accordance with the Council’s enabling statute.

Recap of 2002 Legislation

Council staff provided a recap of Freedom of Information Act (FOIA) and other related access bills considered by the 2002 Session of the General Assembly. Of particular note were the enactment of all FOIA bills recommended by the Council, including HB 173, establishing the Council as a permanent legislative agency; HB 700, creating both a record and meeting exemption relating to terrorism for public bodies; HB 731, authorizing the withholding of certain citizen email addresses and other information from release; and HB 729, clarifying the application of FOIA to constitutional officers. A complete listing and description of FOIA and other related access bills considered by the 2002 Session of the General Assembly is available on the Council’s website.

Bill Referred to Council for Study

The House Committee on General Laws carried over HB 900 (Purkey) and referred it to the Council for study. HB 900 would authorize any public body subject to FOIA to petition the circuit court for a protective order relieving it, in whole or in part, of its obligations to produce requested records where the request is unreasonable, not made in good faith, or motivated primarily by an intent to abuse, harass, or intimidate the public body. The bill also allows the court to require the requester to pay the reasonable attorney’s fees incurred by the public body in obtaining the protective order. The Council appointed a subcommittee of Roger Wiley, John Edwards, and Wat Hopkins (all members of the Council) to study this issue and report its progress at the next Council meeting.

FOIA and Contract Negotiations

The Council next discussed the apparent conflict between the Virginia Public Procurement Act (VPPA) and FOIA as it relates the confidentiality of procurement transactions and the open meeting provisions of FOIA. A related issue discussed was the subject of a recent Council advisory opinion relating to the protection of records and other documents compiled during contract negotiations. In cases not involving the VPPA, the opinion noted that currently no record exemption exists generally for a public body to withhold release of these records even though the bargaining position of the public body may be adversely affected. Because these issues have been the subjects of several inquiries to the Council, the Council appointed a subcommittee of Nolan Yelich and Roger Wiley to examine the relevant statutes and make a recommendation to the Council for resolution.

FOIA and Political and Other Caucuses

The Council next began its deliberations on the treatment of political and other caucuses of the General Assembly under FOIA. In response to recent news articles concerning meetings held by political caucuses of the General Assembly, Council staff briefed the Council on other states’ approaches to this issue and the need for clarity in Virginia’s law. Political caucuses are not public bodies as defined by FOIA because they are not an organization within the Commonwealth supported wholly or principally by public funds. The issue becomes less clear, however, when party caucuses of the General Assembly discuss legislation that is before the General Assembly. In addition to party caucuses, there are also regional and other caucuses established in the General Assembly. Further, it was pointed out that if a rule were established concerning caucuses of the General Assembly, should it also apply to other public bodies, including local governments? Due to the complexity of these issues, the Council directed that they continue to be an agenda item for future Council meetings. The Council expressed a desire to hear from the various caucuses and the public during the public comment portion of future Council meetings and directed staff to contact the various caucuses established in the General Assembly and invite their comment.

In a related matter, the Council unanimously agreed to formalize its policy not to render advisory opinions when a matter is in litigation. Additionally, the Council added a provision to this policy that should staff be subpoenaed solely on issues of law involving FOIA, staff is authorized to file a motion to quash any such subpoena.

Virginia’s Open Records Laws Were Rated One Of The Five Best In The Nation

Staff advised the Council that Virginia’s open records law were rated one of the five best in the nation by the Better Government Association of Illinois. The rating was based on procedural criteria such as (i) the amount of time a public agency

or department has to respond to a citizen’s request for a public document; (ii) the process a citizen must go through to appeal the decision of an agency to deny the request for the public record; and (iii) whether an appeal is expedited when it reaches the court system. The penalty criteria weigh (a) whether the complaining party, upon receiving a favorable judgment in court, is awarded attorney fees and costs; and (b) whether the agency that has wrongfully withheld a record is subject to any civil or criminal punishment.

Statewide FOIA Workshops and Stats on Services Rendered by Council

Staff advised the Council that the annual statewide FOIA Workshops offered by the Council were being scheduled for early September at seven locations: Big Stone Gap, Roanoke, Harrisonburg, Loudoun County, Prince William County, Richmond, and Virginia Beach.

Staff apprised the Council of the latest statistics on the services rendered by the Council. Since July 2000, the Council has responded to a total of 1,689 requests for opinions, both written and informal (i.e., telephone or email). Of that number, the Council has issued 75 written advisory opinions. Citizens continue to make the most requests for assistance, followed by state and local government officials, and media, respectively.

Public Comment

The Council received a copy of draft guidelines for public bodies to use in calculating their actual costs for producing documents under FOIA. The draft guidelines were offered by a citizen who has invested time and energy in trying to understand why actual costs vary from agency to agency and from locality to locality. A suggestion that public bodies conduct a cost analysis to ensure that charges made for document production reflect the actual cost to the public body was included in the draft guidelines. The draft guidelines also offered examples of ways public bodies could keep costs to a requester low, including enlisting the help of volunteers, keeping indices of records up-to-date, and making routinely requested records more easily available.

Additionally, a representative of the Virginia Coalition for Open Government commended the General Assembly for making the Council a permanent legislative agency and encouraged the Council to keep informal mediation of FOIA disputes a priority.

The Council set its next meeting for Monday, August 19, 2002, at 2:00 p.m. in House Room D of the General Assembly Building.

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