FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
November 17, 2005, Richmond
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.
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).
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
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.
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
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
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
Honorable R. Edward Houck, Chair
Maria J.K. Everett, Executive Director
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
2The Public-Private Education Facilities and Infrastructure
Act of 2002/Public-Private Transportation Act of 1995.