VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

June 15, 2005, Richmond

The Virginia Freedom of Information Advisory Council (the Council) held its second quarterly meeting¹ of 2005 to receive progress reports from its two subcommittees and to consider further matters discussed previously.

Subcommittee Reports

1. The Electronic Meetings Subcommittee met on June 8, 2005 to discuss the appropriateness of expanding authorization for the conduct of electronic meetings to local regional authorities and other local public bodies. House Bill 2760 (Delegate Reese) was referred to the FOIA Council for study by the 2005 Session of the General Assembly. As introduced, HB 2760 would allow all local public bodies to conduct meetings under the Freedom of Information Act (FOIA) through electronic communication means (telephone or audio/visual). Under current law, only state public bodies may conduct meetings in this manner.

Subcommittee member Roger Wiley, representing the local government perspective, told the subcommittee that obtaining a quorum for local regional authorities is a problem due to the several jurisdictions served by a regional authority and the distance between the jurisdictions and the meeting site. He indicated that some regional authorities serve as many as 18 jurisdictions. Mr. Wiley noted that reimbursement for travel and expenses is a very real cost in addition to the inefficiencies of requiring county and city executives to spend one-half day just in travel to and from regional meetings. He pointed out that service on a regional authority is a very ancillary duty when compared with the principal responsibilities of county and city executives. He noted that the practical effect of restricting the use of available technology is forcing inefficiency on local government while at the same time complaining that local government should operate more like a business. Mr. Wiley also remarked that there is more public interest in some issues dealt with by regional authorities (i.e. transportation) than regional jail authorities, for example. In addition, with traffic congestion in the metropolitan areas of the state, it is increasingly difficult to get good people to serve in the public sector. Mr. Wiley reported that the Virginia Municipal League and the Virginia Association of Counties had suggested the appointment of lower echelon personnel to regional authority boards as a way to eliminate the problem of obtaining a quorum on the theory that they would not be as busy as a city manager, for example. The experience however did not bear this out and the problem persists. Mr. Wiley indicated that it is a source of frustration when local officials appointed to the board of a regional authority are away on business or for personal reasons on the day of a board meeting. Allowing them to participate electronically would alleviate scheduling conflicts and improve attendance. As it stands now, such an official would have to miss the meeting. The subcommittee was asked to consider allowing a minority of a regional authority board to meet by electronic means, but to require the quorum of the board to be physically present at the meeting site.

The Virginia Coalition for Open Government (VCOG) indicated that its board of directors expressly opposed the expansion of the authorization for the conduct of electronic meetings to local governing bodies or local regional authorities. Because of the substantial rewrite of the electronic meetings statute in 2005, time was needed to gain experience and collect data under the new rules for electronic meetings. It was noted that as new communication technologies are developed, there is more opportunity for abuse of open meeting principles.

The Virginia Press Association (VPA) concurred with the remarks of VCOG although it stated that it was aware of the imposition on individual members of local public bodies. However, the membership of the VPA has expressed opposition to any further loosening of electronic meeting rules in light of the significant concessions made in the law in 2005. It was noted that with electronic meetings there is less interaction among the members of the public body and visual cues such as body language are lacking. Mr. Wiley protested that such notions further the premise that local government officials are the "bad guys" and state officials are not.

Expansion of the use of electronic meetings to local regional authorities is viewed as premature in light of the changes to the electronic meetings law in 2005. Electronic meetings were first authorized in 1984 and no significant amendment has been made until 2005. At that time, the rules for the conduct of these meetings were substantially relaxed. Any further expansion at this time was perceived as the camel's nose under the tent. Additionally, allowing local regional authorities to conduct electronic meetings would not solve the problem of establishing a quorum as the current law requires a quorum of a state public body to be physically assembled at the main meeting location.

A representative of Stafford County suggested that perhaps a pilot project involving a regional authority may be in order. The idea was to allow a designated regional authority to meet electronically and report its experiences with electronic meetings. In lieu of creating a pilot project, it was suggested that regional authorities consider rotating the meeting locations among the member jurisdictions. It was noted the most regional authorities meet between four and six times per year and that rotation of the meeting sites would spread the burden of travel among the participating jurisdictions.

Another issue was raised concerning clarification of which public bodies may conduct electronic meetings. Currently § 2.2-3708 provides that "[I]t shall be a violation of this chapter for any political subdivision or any governing body, authority, board, bureau, commission, district or agency of local government or any committee thereof to conduct a meeting wherein the public business is discussed or transacted through telephonic, video, electronic or other communication means where the members are not physically assembled." (Emphasis added). It was noted that the general understanding of § 2.2-3708 is that state public bodies may conduct electronic meetings while units of local government may not. However, state authorities are political subdivisions as stated in their enabling legislation. The question is whether they are precluded from conducting electronic meetings.

2. The PPEA (Public Private Education Facilities and Infrastructure Act) Subcommittee met on June 8, 2005 to discuss the current FOIA records exemption found at § 2.2-3705.6 (11). This subcommittee was created as a result of HB 2672 (Delegate Plum), which was referred to the FOIA Council for study by the 2005 General Assembly. The reason for referral to the FOIA Council and hence the creation of a subcommittee was not so much a problem with the bill itself, but concern about 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.

It was brought to the subcommittee's attention that there were four localities where problems existed concerning excessive secrecy concerning PPEA projects. Most of these controversies revolved around the friction between school boards, which are responsible for building new schools, and the local governing bodies, which approve the funding for school construction. It was noted that more transparency from the start of PPEA projects is needed and especially at the local government level.

Part of the perception of secrecy stems from the lack of criteria by which to distinguish truly confidential proprietary information from other types of information. Businesses all too often earmark all documents submitted to government as proprietary and thus thwart disclosure of records related to the procurement process. It was suggested that confidential proprietary information needs to be defined to protect that information which is truly confidential and is protected for all purposes and at all times (i.e., proprietary records that need to be protected notwithstanding the procurement process) versus that which the business would prefer not to have released, but which are related to the procurement transaction. It was suggested that the latter should become open when an agreement is entered into. Additionally, it was suggested that the exemption should specify the time when certain records of the transaction are to be made available. Answering the question what can be withheld during the process, it was suggested that when a public entity has all of the proposals, the deadlines for submission are over, and the public entity begins its review of the proposals, vendors have less need to be protected and therefore records of the proposals should be made available. Further discussion, however, is needed on what should be open at the end of the process, but before the contract is awarded. From the private sector perspective, Mr. Axselle noted that there is some suspicion by the private sector that a public body has already made its decision before receiving all proposals. The losing contractor does not make a request for the records because they feel it is viewed as antagonistic by the public entity and the contractors want to maintain a good relationship with the public body for future procurement opportunities.

Under the PPEA, procurements records are required to be released once a comprehensive agreement has been entered into. This is consistent with the Virginia Public Procurement Act (VPPA) which provides public access to procurement records once a contract is awarded. Under the VPPA, bidders have an earlier right of inspection to ensure the fairness of the process. However, the PPEA does not contain a similar provision. Further, in 2005, the PPEA was amended to authorize the award of interim agreements. In light of this amendment, the subcommittee decided that this issue should be considered as part of its work. The subcommittee felt that if the agreement is binding on the parties, it should be available to the public. The nature of interim agreements was discussed. Many interim agreements are the staging agreements for the entire project and may include separate agreements for preliminary engineering studies, environmental work, design of the project, and finally, construction of the project. Interim agreements are used to avoid unnecessary delay on a project.

As a result of its discussions, the subcommittee by consensus agreed to examine the following issues:

• The need to define "confidential proprietary records."
• The need for an affirmative declaration and/or agreement by a public entity that certain records will be considered proprietary and thus protected from disclosure.
• The need to articulate specific time lines for release of records related to PPEA projects.
• Interim versus comprehensive agreements, and when records related to each must be made available.
• Disclosure by school boards to the local governing bodies responsible for approving funding for school construction.

Concern was raised that with the expenditure of public dollars for PPEA projects, the public knows only at the end of the process. In question was whether it was the intent of the law to let the public know only after the agreement. Staff noted that in both the PPEA and the VPPA, the public right of inspection of procurement records occurs only after the contract has been awarded. Staff noted however that both Acts require public notice at the beginning of the process of the nature of the work to be undertaken.

The subcommittee stated that the balance necessary for development of good public policy is to facilitate competition while at the same time ensuring the public confidence in the decisions of government, especially when expending substantial public funds. The subcommittee agreed that it needed to hear from the private sector as it continues its deliberations. Staff will develop an issue matrix to array the issues outlined above to frame the issues and facilitate discussion. It is anticipated that the issue matrix will be available by the end of June, circulated to the interested parties, and posted to the FOIA Council website. No date has been set for the next subcommittee meeting. The subcommittee encourages any individual or group, state and local officials, and others interested in the work of the subcommittee to submit comment and participate in subcommittee meetings.

Other Business

The Council at its last meeting had discussed whether a mandated fifth response to a FOIA request--the requested records do not exist-- was needed and directed staff to examine this issue more fully and present a proposal for the Council's consideration. 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. Staff advised that it was still working on draft language to present for the Council's consideration, but noted that the task was more difficult than first anticipated. Part of the difficulty was that the response "the records do not exist" may raise more questions than it answers and contribute to feelings of distrust. Members of the Council stated that it seemed a matter of common courtesy for a public body to advise a requester when the requested records do not exist. Staff advised that it will continue to work on draft language and present it for the Council's consideration at the next meeting.

The Council next discussed the status of a guidance document for publication on the Council's website that clarifies a public body's obligations under FOIA in light of "value added" public records produced through the Virginia Information Technologies Agency (VITA) and subject to a licensing agreement with the requester. Staff advised that it has been working with VITA to develop a guidance document for publication on the Council's website and that a draft of guidance document will be ready for the Council's review at the next meeting. The council also requested that staff for the Joint Commission on Technology and Science be apprised of the Council's efforts in this regard.

Recent Virginia Supreme Court decision on FOIA

Staff advised the Council of the latest Virginia Supreme Court case involving FOIA in the case of Cartwright v. Commonwealth Transportation Commissioner of Virginia. The issue before the court was whether the circuit court (in Chesapeake) erred in denying a petition for a writ of mandamus² brought in accordance with FOIA (§ 2.2-3713) on the ground that the petitioner had an adequate remedy at law. The facts that gave rise to the case involved a FOIA request made by a citizen for particular documents prepared by the Virginia Department of Transportation (VDOT). Specifically, Mr. Cartwright made a FOIA request to VDOT for a photocopy of a "sales brochure"³ compiled by VDOT relating to VDOT's highway construction project in Chesapeake. Mr. Cartwright is a property owner affected by the project and a party to the condemnation proceeding. Mr. Cartwright's FOIA request was denied and VDOT cited the "legal memorandum and other work product compiled specifically for use in litigation" (§ 2.2-3705.1 (3)) and "appraisal and cost estimates of real property subject to a proposed purchase, sale or lease, prior to the completion of such purchase, sale, or lease (§ 2.2-3705.1 (8)). Mr. Cartwright had also sought the record through discovery served on VDOT.

Mr. Cartwright filed a FOIA petition for mandamus to compel production of the sales brochure. The trial court ruled in favor of VDOT and agreed that "the mandamus action was not appropriate because Mr. Cartwright could seek to obtain the same information through a motion to compel discovery in the pending condemnation action."⁴

The Supreme Court noted that this was the first time that it had considered whether a writ of mandamus filed as specifically authorized in FOIA may be denied because of the availability of another adequate remedy at law. Note: A writ of mandamus at common law is an extraordinary remedy which is "necessary to prevent the failure of justice.⁵

The Court found:

1. The intent of General Assembly in enacting FOIA "ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees...⁶
2. FOIA "shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government;"⁷
3. Specific statutory authority exists for filing a mandamus action, with jurisdiction before the general district or circuit court, to enforce FOIA rights, with the action required to be heard within seven days of the petition;
4. The burden of proof on public body to establish an exemption by a preponderance of the evidence and any failure by a public body to follow FOIA procedures is presumed a violation; and
5. Specific enforcement provisions in FOIA are contrary to common law mandamus which puts burden of proof on the petitioner and contains presumption of government regularity.

The Supreme Court held that the circuit court erred in denying Mr. Cartwright's petition for mandamus. In its decision, the Court stated, "We hold that a citizen alleging a violation of the rights and privileges afforded by the FOIA and seeking relief by mandamus pursuant to Code § 2.2-3713 (A) is not required to prove a lack of adequate remedy at law, nor can the mandamus proceeding be barred on the ground that there may be some other remedy at law available."

Of Note

Staff reported that for the period March 23, 2005 through May 31, 2005, it had received a total of 347 inquiries. Of the 347 inquiries, seven had been requests for formal written opinions and 337 informal inquiries coming from telephone and emails. Citizens accounted for 143 of the informal inquiries, the government for 145 inquiries, and the media for 49 inquiries. Of the formal opinions, the breakdown was five requests by citizens and two by government.

Staff also reported that the Council-sponsored Symposium on Children's Records was scheduled for Tuesday, June 21, 2005 and that to date, there were approximately 40 people were registered, representing law-enforcement agencies, educational institutions, and social services agencies.

Planning has begun for the 2005 FOIA Workshops to be held in five statewide locations--Abingdon, Harrisonburg, Richmond, Norfolk, and Fairfax.

Public Comment

Bob Gibbons, a member of the Stafford County Board of Supervisors, discussed two issues with the Council. The first issue concerned the PPEA and mistrust of the process by the public. He advised that the PPEA works and that public bodies want to use it, but are electing to use traditional procurement processes to avoid exacerbating public mistrust. Additionally, Mr. Gibbons requested the Council to consider expanding the authority for electronic meetings to regional public bodies. He indicated that most members of regional public bodies must travel 75 to 100 miles for a one hour meeting. He suggested that authorization for audio/visual meetings only (and not teleconferences) should be explored for a selected regional public body as a way to provide more public access and to receive more public comment. He requested that the Council consider a one-year pilot project.

Lee Albright, a Nelson County citizen, advised the Council of his attempts to get records from the Department of Game and Inland Fisheries and of the need to file a lawsuit to gain access to the requested records. He discussed the favorable outcome of his FOIA suit against the Department for violation of FOIA. Mr. Albright indicated that he had received advisory opinions from the Council on this issue, but unfortunately, those opinions did not seem to influence the Department's actions. Mr. Albright expressed concern that a lawsuit was the only remedy under FOIA to force a public body to comply with the law. As a result of Mr. Albright's comments, the Council requested staff to prepare a report chronicling Mr. Albright's efforts to get records under FOIA and the disposition of his lawsuit. The members of the Council shared Mr. Albright's concern that citizens should not have to endure what Mr. Albright has, especially in light of the mandatory disclosure requirements of FOIA. The Council agreed to examine the issue of whether FOIA should be amended to provide additional remedies for violation.

The next meeting of the FOIA Council is scheduled for Wednesday, August 31, 2005.

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

¹ All Council members were in attendance except Mssrs. Miller and Moncure.
² Writ of mandamus is used to compel a public official to perform a ministerial duty imposed on him by law.
³ According to the Court, "a sales brochure is a document prepared by VDOT for the purpose of preparing appraisals and offers for property that is subject to condemnation for public use."
⁴ Cartwright v. Commonwealth Transportation Commissioner of Virginia, cite...
⁵ Section 17.1-513 of the Code of Virginia.
⁶ Section 2.2-3700 of the Code of Virginia.
⁷ Section 2.2-3700 of the Code of Virginia.