FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
August 31, 2005, Richmond
Freedom of Information Advisory Council (the Council) held
its third quarterly meeting1 of 2005. Among other things, the
Council received progress reports from its two subcommittees,
reviewed draft FOIA legislation and newly created educational
material on FOIA charges, and received a demonstration by
VDOT on its "FOIA Tracker" system.
Electronic Meetings Subcommittee met on July 13, 2005 and
reported that as part of its deliberations, it had discussed
the legislative history of § 2.2-3708 (electronic meeting
provisions) and noted that when the law was initially enacted
in 1984, it prohibited any public body from conducting electronic
meetings. The next significant amendment to this section came
in 1992 when state public bodies were granted the permanent
authority to conduct electronic meetings. In 1996, §
2.2-3708 was amended to require that a quorum of a state public
body be assembled at one central location as a prerequisite
for conducting electronic meetings. Finally, in 2005, this
section was amended to significantly relax the procedural
requirements for conducting electronic meetings by state public
bodies. Chairman Edwards advised that the subcommittee voted
not to recommend HB 2760 (Reese) as it related to local governing
bodies and school boards in light of the significant relaxation
of the procedural requirements made by the 2005 Session of
the General Assembly to § 2.2-3708.
did, however, discuss the application of § 2.2-3708 to
local regional public bodies. The subcommittee had previously
been requested by the Potomac and Rappahannock Transportation
Commission (the Commission) to authorize them to conduct a
pilot project whereby the Commission could meet electronically
and report its experiences. The Commission is comprised of
public officials representing several jurisdictions which
required at least 90 minutes of travel one-way (assuming no
traffic) to meetings in Manassas. The long commute to meetings
also adversely impacts citizens wishing to attend. The representative
of the Commission renewed the request for a pilot project
by the Commission under specified conditions as deemed appropriate
by the Council and the General Assembly to increase Commission
member participation and that of the interested citizens.
In response, the Virginia Press Association (VPA) and the
Virginia Coalition for Open Government (VCOG) stated that,
although they had not considered a pilot project specifically,
a compelling need had not been demonstrated to further expand
authorization for the conduct of electronic meetings. Noting
further that because of the extensive rewrite of the electronic
meetings law in 2005, the VPA and VCOG were opposed to further
relaxation of the electronic meeting rules at this time.
of the Piedmont Workforce Network (the Network) advised the
subcommittee that the Network, required under the federal
Workforce Investment Act, was comprised of a board of over
50 members, representing 11 jurisdictions. He advised that
for some members, it is a two-hour commute one-way. He reported
that due to the large number of members, the Network has trouble
with attendance generally and also has trouble achieving a
quorum for the conduct of its business. He noted that the
ability to conduct electronic meetings would assist in the
work of the Network.
of the Virginia Association of Counties (VACO) advised the
subcommittee that with shrinking budgets, VACO is encouraging
regional cooperation. Authority for conducting electronic
meetings would enhance regional cooperation and allow affected
citizens to more easily monitor the work of regional groups.
Edwards stated that interest by local and regional public
bodies in conducting meetings by electronic communication
means would likely continue and at some future date, the Council
would have to revisit the issue. He suggested, however, that
for the present, the better course is to live with the 2005
changes to the law and monitor how it works.
on its discussion and the public comment received, the subcommittee
voted unanimously to recommend to the Council that expanding
the authority for the conduct of electronic meetings to regional
public bodies was premature at this time in light of the significant
relaxation of the procedural rules for electronic meetings
made in 2005. Further, the subcommittee would recommend that
the issue be revisited next year after some experience with
the new rules as it was not insensitive to the needs of regional
governments. The subcommittee recommended that in the spring
of 2006 a subcommittee be appointed to review the issue of
electronic meetings and regional public bodies. Mr. Edwards
made a motion that the Council continue to monitor the use
of electronic meeting by state public bodies and reconvene
a subcommittee in spring 2006 to examine the issue of authorizing
the conduct electronic meetings by regional public bodies.
The motion was adopted unanimously.
Axselle, chair of the PPEA Subcommittee, reported that PPEA
Subcommittee met on August 26, 2005 to continue deliberating
on issues about public access to procurement records under
the PPEA/PPTA2. Mr. Axselle noted that with the resignation
of Council and PPEA Subcommittee member David Hallock, the
subcommittee had only two remaining members and requested
the appointment of additional members to the subcommittee.
Council members Houck and Wiley volunteered to serve on the
PPEA Subcommittee. Mr. Axselle reported that the PPEA Subcommittee
has held three meetings and was making progress, although
it had no firm recommendations to make at this time. He reiterated
the guiding principle of the subcommittee is to find the balance
to facilitate competition while ensuring the public confidence
in the procurement decisions of government, especially when
expending substantial public funds. He identified several
points of consensus reached, including (i) that trade secrets,
financial statements of privately held companies, balance
sheets, etc. should always be confidential; (ii) that conceptual
proposals received by a public body should be posted on the
websites of the respective public bodies; (iii) that FOIA
should be amended to formalize the process for requesting
and approval of confidential proprietary records in order
for them to be protected; (iv) that a public comment period
on proposals should be established that may include a public
hearing in the discretion of the public body; and (v) that
any recommendations of the subcommittee concerning disclosure
of proposals should apply to both interim and comprehensive
agreements under the PPEA. Mr. Axselle advised that staff
will be preparing drafts on the points of consensus for review
and comment at next meeting of the subcommittee.
identified the remaining issues to be considered by the subcommittee,
including (i) the need to define confidential proprietary
information; (ii) whether confidential proprietary information
should be accessible to the public and if so, when; (iii)
whether the VPPA3, PPEA and PPTA (and not just FOIA) should
be amended to require a more formalized request for protection
of confidential proprietary information submitted by a business
and a requirement for the public entity to formally declare
what will be considered confidential proprietary information
and therefore protected from disclosure.
reviewed draft legislation to require public bodies to advise
a requester when a requested record does not exist. As drafted,
the bill adds a fifth response to the list of responses a
public body must make in response to a request for records
under FOIA. Currently, the responses are (i) the records will
be provided, (ii) the records will be entirely withheld, (iii)
the records will be provided in part and withheld in part,
and (iv) the public body needs more time to provide the records
or to determine whether they exist. The fifth response required
by the bill is for instances where the requested records cannot
be provided because the public body is not the custodian of
the requested records, the requested records do not exist,
or such records cannot be found after diligent search. The
public body is required to respond in writing and certify
that (i) it is not the custodian of the records and is not
in possession of the records, (ii) the requested records do
not exist, or (iii) the requested records cannot be found
after diligent search. The Council deferred action on the
draft until its next meeting to allow more time for review
and comment by Council members and other interested parties.
next reviewed a proposed guidance document on allowable charges
for record production under FOIA. Although public bodies have
the authority to assess charges for the production of records
under FOIA, there is still considerable misunderstanding among
public bodies and citizens alike on this issue. This much-needed
guidance document hopefully will clarify rights and responsibilities,
which should lead to enhanced compliance with the FOIA charging
provisions. The guidance document will be added to the Council's
already broad array of educational materials and will be posted
on its website.
presented its report chronicling Mr. Lee Albright's efforts
to obtain records from the Virginia Department of Game and
Inland Fisheries (VDGIF) and, ultimately, Mr. Albright's FOIA
suits against VDGIF. Staff advised that Mr. Albright's initial
dispute with VDGIF concerned a request for salary records
made in October, 2003. An advisory opinion regarding this
dispute was issued in March, 2004. After several months of
further correspondence between the parties, Mr. Albright sued
VDGIF. An out-of-court settlement was reached resolving this
dispute in August, 2004.
dispute concerned a request made in March, 2004, for meeting
minutes of the Board of VDGIF. An advisory opinion regarding
this second dispute was issued in December, 2004. This dispute
was never resolved, but Mr. Albright let the matter drop after
the resignation of the Chairman of the Board of VDGIF in March,
dispute arose after three records requests made in December,
2004, in which Mr. Albright asked for separate advance estimates.
While Mr. Albright did receive the desired estimates, he only
did so after filing suit, and this dispute was ultimately
resolved by a court decision in Mr. Albright's favor in June,
dispute arose from a request initially made in October, 2004.
While court decisions in Mr. Albright's favor regarding this
fourth dispute were issued in June, 2005, and August, 2005,
it appears that further litigation may be on-going at this
it appears that the records generated from Mr. Albright's
FOIA requests may have been used to support the State Internal
Auditor's investigation of VDGIF earlier this year. While
the allegations in the SIA Report raise concerns in regard
to FOIA as well as other areas, it appears that significant
changes have occurred and continue to be made within VDGIF.
Both the Chairman of the Board and the Director of VDGIF have
resigned from their positions. The Chairman resigned in March,
2005; the Director resigned in May, 2005. VDGIF now has a
new acting Director, Col. Gerald Massengill, formerly of the
Virginia State Police.4 At least one other Board member resigned
in June, 2005. In addition, it appears that some of the higher-ranking
employees named in the SIA Report have also resigned, and
news reports have described other organizational changes within
VDGIF. News reports have also indicated that a criminal investigation
by the Virginia State Police is ongoing into the matters described
in the SIA Report.
that dozens of articles, editorials, and commentaries have
been published about Mr. Albright's encounters with VDGIF
and the SIA Report in various media. The three articles included
herein are representative of the reporting on Mr. Albright's
experiences in seeking documents from VDGIF through FOIA,
and on current events at VDGIF that have resulted from the
of the Council shared Mr. Albright's concern that citizens
should not have to endure what Mr. Albright has experienced,
especially in light of the mandatory disclosure requirements
of FOIA. The Council queried whether Mr. Albright's experience
was typical. Mr. Albright indicated that he believed the experience
to be an aberration based on the fact that he has made numerous
FOIA requests to other units of government who fully complied
with the law in providing documents. The Council agreed that
at its next meeting it would examine whether changes in the
remedies afforded by FOIA should be made.
discussed the need to begin planning for "Sunshine Week"
in March 2006. The Council expressed an interest in taking
an active part in "Sunshine Week" in 2006 and will
begin consideration of the method and nature of its involvement.
Ginger Stanley of the Virginia Press Association offered to
work with Council staff to develop recommendations for the
Council's participation in Sunshine Week.
Houck brought to the Council's attention an editorial from
the Staunton News Leader dated August 28, 2005 on the Virginia
Information Technologies Agency (VITA) and the perceived secrecy
with which VITA is overhauling the IT systems of state government.
Senator Houck stated that, to his understanding, VITA is not
operating outside of the law, but its actions raise significant
policy issues regarding public procurement. Senator Houck
requested staff to invite VITA to the next Council meeting
to discuss their actions in this matter and explain the need
for such secrecy.
R. Giles, Assistant Policy Director, VDOT, demonstrated the
VDOT "FOIA Tracker" system. She indicated that VDOT
handles between 350 and 400 FOIA requests per year. She explained
that with 9,300 VDOT employees and nine districts offices
throughout Virginia, VDOT, on its own initiative, developed
a centralized system to track and respond to FOIA requests.
Benefits already derived from this new system include greater
accountability, consistency, and compliance with FOIA; better
response for the citizens requesting VDOT records; and real
time data analysis for VDOT managers. She reported that development
of the "FOIA Tracker" system cost approximately
$100,000 and involved four VDOT employees who spent two months
to develop the system. The Council commended VDOT for its
initiative in the development of the "FOIA Tracker"
system and its willingness to investigate ways in which to
share its approach with other agencies. In addition, VDOT
was commended for building an institutional culture that sends
a positive message to its employees about the importance of
reported that for the period June 1, 2005 through August 31,
2005, it had received a total of 424 inquiries. Of the 424
inquiries, five had been requests for formal written opinions
and 419 informal inquiries coming from telephone and emails.
Citizens accounted for 164 of the informal inquiries, the
government for 204 inquiries, and the media for 51 inquiries.
Of the formal opinions, the breakdown was three requests by
citizens and two by government.
also reported that preparations for the 2005 FOIA Workshops
in October in Abingdon, Harrisonburg, Richmond, Norfolk, and
Fairfax were nearing completion.
Landon of the Virginia Coalition for Open Government (VCOG)
stated that although Mr. Albright's experience with VGIF was
an aberration, it was not unique. Mr. Landon indicated that
it is significant that Mr. Albright went to the Council first
for assistance and not to courts. He noted that when the Council
was created in 2000, Delegate Woodrum stated on the House
floor that the Council would provide informal mediation, although
that is not specified in the Council's enabling statute. Mr.
Landon opined that without favorable advisory opinions from
the Council, Mr. Albright would not have pursued his FOIA
remedies through the court system. Mr. Landon suggested that
the Council consider recommending specific statutory authority
for informal mediation to resolve FOIA disputes.
next meeting of the Council has been scheduled for Thursday,
November 17, 2005 at 9:00 a.m. in House Room D of the General
Assembly Building in Richmond.
R. Edward Houck, Chair
Maria J.K. Everett, Executive Director
Council members were in attendance.
2The Public-Private Education Facilities and Infrastructure
Act of 2002 (§ 56-575.1 et seq.) and the Public-Private
Transportation Act of 1995 (§ 56-556 et seq.).
3The Virginia Public Procurement Act (§ 2.2-4300 et seq.).
4Mr. Albright has indicated that Col. Massengill has been very
supportive and helpful regarding Mr. Albright's FOIA issues
with VDGIF, describing his current interaction with Col. Massengill
as a "180 degree turnaround" from the adversarial
encounters he had with former VDGIF staff and officials.
5Excerpted from a memorandum dated August 31, 2005 from Alan
Gernhardt, Council staff attorney, to the members of the Council.