VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

November 17, 2005, Richmond

The Freedom of Information Advisory Council¹ (the Council) conducted its customary annual legislative preview as its fourth meeting of 2005. In addition to the legislative preview, the Council received a progress report from its PPEA/PPTA² Subcommittee, reviewed possible Council legislative proposals, and received a briefing from the Virginia Information Technologies Agency (VITA) on its proposal for outsourcing the state's information technology. The Council also welcomed its newest member, Mary Yancey Spencer of the Virginia State Bar, who replaced David Hallock as one of the citizen members of the Council.

Subcommittee Report

The PPEA/PPTA Subcommittee reported that it had met four times to develop a consensus draft relating to public access to procurement records under both the PPEA and the PPTA. While there are many points of consensus, several issues remain unresolved, including alternatives to posting certain records on websites, the protection of other records submitted by a private entity that are not trade secrets or private financial information, and whether there should be access to any procurement records (other than the proposed interim or comprehensive agreement) before execution of an agreement, and if so, by whom (participating proposers and/or the public).

Because of the remaining unresolved issues, a motion was adopted by the Council to refer the matter back to the subcommittee for further deliberations. It is anticipated that the subcommittee will conclude its work and make its recommendations to the Council for its consideration at its next meeting on December 29, 2005.

Legislative Proposal

The Council again reviewed its proposed draft legislation relating to a mandated fifth response to FOIA requests--"the requested records do not exist." Consideration of this draft was deferred from the last Council meeting to allow Council members and the public time to review the draft and make comment. Alternative language was proposed by Council member Craig Fifer to eliminate the use the term "custodian" as it was not defined in FOIA. Additionally, Mr. Fifer's proposed changes to the staff draft which would (i) require all public bodies, even ones not subject to FOIA, to make a response to a FOIA request by stating that they are exempt from the provisions of FOIA; (ii) add an affirmative requirement that if a public body does not have the requested records but is aware which public body does, the requestor must be made aware of that fact; and (iii) provide a new basis--the request would require an extraordinarily lengthy search-- for a public body to petition the court for more time to respond to request.

Some Council members expressed concern that placing an affirmative duty on a public body that does not have the requested records to tell a requester where the records can be obtained sets up a situation that cannot be proven and may foster FOIA battles over that issue. The response that "the records do not exist" was also source of concern given the difficulty in proving a negative as well as what happens if it was later proved that the records did exist. The Council favored the approach that the records could not be found after a diligent search. It was the consensus of the Council that a fifth response should be included as one of the mandatory responses to a FOIA request and directed staff to continue to work on draft language in light of the comments made. Final deliberations on the draft will be the subject of the next meeting of the Council.

Legislative Preview

1. Dr. Daniel J. LaVista, Executive Director, State Council of Higher Education for Virginia (SCHEV) and Alan L. Wurtzel, Chair of SCHEV, advised the Council that SCHEV sought an exemption from the electronic communication meeting requirements in FOIA found at § 2.2-3708. They indicated that it was not their intent to undermine FOIA, but that travel issues make physically assembled meetings counter productive. Additionally, there are increased workloads on SCHEV as a result of the restructuring of public institutions of higher education. Under their proposed amendment, the provisions of § 2.2-3708 would not apply to SCHEV, although three members of SCHEV would have to be physically located at one location with public access via telephone access code and/or at a conference facility with at least 25 available telephone lines. Additionally, no votes or actions could be taken by SCHEV for meetings conducted in this manner. While acknowledging SCHEV's proposed amendment has little chance of success, Council member Roger Wiley commented that SCHEV's position is not unlike that of local and regional public bodies in terms of travel issues and the burdens current electronic communication meeting requirements place on public officials. Further, he noted that technology has made physically assembled meetings unnecessary. Council member Stewart Bryan indicated that although he understood that travel for public business can be burdensome, he noted that there are other issues to be consider other than the convenience of the members of a public body. He suggested that a subcommittee be created to consider the issues raised by SCHEV and Mr. Wiley. Public comment on the SCHEV proposal was that the new, relaxed rules for electronic communication meetings only became effective in July 2005 and four months was not enough time on which to base yet another statutory change.

   Recognizing that the issues attendant to electronic communication meetings deserved further study, the Council, by consensus, agreed to reconstitute its subcommittee on electronic communication meetings. Council members John Edwards, Roger Wiley, E.M. Miller, Stewart Bryan, and Senator Houck were appointed to the subcommittee. Additionally, Senator Houck invited Mr. Wurtzel to participate in the work of the subcommittee when it begins its deliberations in the spring of 2006.

2. Patrick C. Devine, Jr., Esquire, Williams Mullen Hofheimer Nusbaum, advised the Council that he spoke on behalf of the Virginia Bar Association's Health Laws Section concerning the need for a general clean-up of various laws relating to hospital authorities, including amendments to FOIA. He indicated that there was too much variety in the law concerning the treatment of hospital authorities, with some being covered by the Hospital Authority law (§ 15.2-5300 et seq.) while others are covered by special acts of the General Assembly. He stated that the FOIA provisions relating to the Medical College of Virginia and the University of Virginia Medical Center were left untouched by his proposal; although he believed that hospital authorities should have the same FOIA exemptions that MCV and UVA enjoy. He advised the Council that the proposal was still a work in progress and did not represent a final draft. The Council suggested that Mr. Devine include the Virginia Press Association and the Virginia Coalition for Open Government as part of the Virginia Bar Association's Health Laws Section's consideration of the issues.

Other Business

1. Lemuel C. Stewart, Jr., Chief Information Officer, VITA, briefed the Council on VITA's efforts to procure goods and services for Virginia's information technology needs using the PPEA. Mr. Stewart began his remarks by stating that the Information Technology Investment Board (the Board) fully supports FOIA but believes there should be a balance between facilitating competition and public access to competitive processes. The Board voted unanimously on October 25, 2005 to select Northrop Grumman for a potential 10-year partnership agreement valued at $1.986 billion to modernize the Commonwealth's information technology (IT) infrastructure and services. He told the Council that the agreement is on VITA's website. He said that VITA chose to make it an interim agreement so that it could be reviewed by the public and the General Assembly. He stated that he does not believe an agreement should be posted before it is entered into because nothing is final until the agreement is signed by the parties. Additionally, he noted that there is a standard clause in each agreement that states that the agreement is void at the option of the Commonwealth at anytime, which he believes is there to protect the public interest. Mr. Stewart told the Council that the PPEA is best suited for big projects. He agreed that use of the PPEA is more expensive, but claimed that the outcome is superior. He stated that private innovation is the benefit derived from this method of procurement. Mr. Stewart reported that the state's IT procurement process under the PPEA was a two-year process that began in December 2003 with the receipt by VITA of four unsolicited proposals. By June 2004, all proposals were posted on VITA's website. He indicated that the documents were open for public review for a full year and were the subject of 9,000 independent reviews. VITA followed the Department of General Services Capitol Outlay Manual and the Secretary of Administration's requirements. In addition, VITA fielded questions from the public and state employees. He claimed that newspaper accounts of these negotiations implied that VITA was secretive. Mr. Stewart stated that while negotiations among the vendors were underway, documents related to the negotiations were not released to protect the competitive and financial interests of the Commonwealth. Queried if given the chance to do it over again would VITA change anything, Mr. Stewart indicated that it is important at the beginning to set out the PPEA process and the timetable for release of records.
2. On the issue of the adequacy of FOIA remedies in light of Lee Albright versus Virginia Department of Game and Inland Fisheries (VDGIF), held over from the last meeting, the Council, by consensus, agreed the remedies authorized under FOIA were sufficient and no further action was needed.
3. Staff reported that since the relaxation of the rules governing electronic communication meetings in July 2005, two reports covering two electronic communication meetings were filed by the Executive Committee of the Virginia Workforce Council.
4. The Council briefly discussed plans for participation in Sunshine Week in March 2006. The Council directed staff to work with the Virginia Press Association, the Virginia Association of Broadcasters, and the Virginia Coalition for Open Government to coordinate efforts to publicize Sunshine Week.

Of Note

1. The Council was briefed by Lisa Wallmeyer, staff to the Joint Subcommittee Studying the Public Records Act pursuant to HJR 6 (2004), on the status of that joint subcommittee's work to date.
2. Staff briefed the Council on the latest statistics on opinions rendered by the Council for the period September 1 through November 15, 2005. There were 306 requests for informal opinions (phone, email, etc.) as follows: 144 from citizens, 130 from state and local government, and 32 from media representatives. No formal written opinions were issued in this period.
3. Staff updated the Council on the outcome of the annual FOIA workshops, held Abingdon, Harrisonburg, Fairfax, Richmond and Norfolk. The workshops were approved by the Virginia State Bar for continuing legal education credit, the Department of Criminal Justice Services for law-enforcement credit, and the Virginia School Board Association for academy points, and reached approximately 350 persons statewide, including government officials, media representatives and citizens. After conducting annual statewide FOIA workshops in each of the six years since the Council's creation in 2000, the Council viewed declining attendance over the last two years as a sign that its basic training mission had been successfully accomplished. The Council welcomed the opportunity to provide other relevant training programs to meet the needs of government officials, the media, and citizens alike. Statewide workshops will continue to be offered in odd-numbered years to provide training to new public officials and employees. In even-numbered years, the Council will conduct a forum to address topic-specific issues such as public access in light of the HIPPA, the Patriot Act, and other federal and state laws.

The next meeting of the Council has been set for Thursday, December 29, 2005 at 1:00 p.m. in House Room D of the General Assembly Building, Richmond. The agenda for this meeting will be limited to consideration of the PPEA/PPTA Subcommittee draft and the draft mandated fifth response to a FOIA request.

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

¹Council members in attendance were Senator Houck, Delegate Griffith, J. Stewart Bryan, John Edwards, Craig T. Fifer, W. Wat Hopkins, Mary Yancey Spencer, Roger C. Wiley, and Nolan Yelich. Council members Ralph L. Bill Axselle, E.M. Miller, and Thomas Moncure were absent.
²The Public-Private Education Facilities and Infrastructure Act of 2002/Public-Private Transportation Act of 1995.