FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
June 15, 2005, Richmond
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
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.
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.
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.
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.
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.
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.
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
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
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.
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.
result of its discussions, the subcommittee by consensus agreed
to examine the following issues:
need to define "confidential proprietary records."
need for an affirmative declaration and/or agreement by
a public entity that certain records will be considered
proprietary and thus protected from disclosure.
need to articulate specific time lines for release of records
related to PPEA projects.
versus comprehensive agreements, and when records related
to each must be made available.
by school boards to the local governing bodies responsible
for approving funding for school construction.
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.
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.
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.
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.
Virginia Supreme Court decision on FOIA
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
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
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
"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
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;
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;
enforcement provisions in FOIA are contrary to common law
mandamus which puts burden of proof on the petitioner and
contains presumption of government regularity.
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."
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.
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.
has begun for the 2005 FOIA Workshops to be held in five statewide
locations--Abingdon, Harrisonburg, Richmond, Norfolk, and
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.
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
meeting of the FOIA Council is scheduled for Wednesday, August
R. Edward Houck, Chair
Maria J.K. Everett, Executive Director
All Council members were in attendance except Mssrs. Miller
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.