VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

November 18, 2002, Richmond

Electronic Communications and FOIA

The Freedom of Information Advisory Council began its meeting with a discussion of the FOIA suit filed in Fredericksburg against five members of the Fredericksburg City Council alleging that they held 16 illegal electronic meetings via email and three illegal face-to-face meetings. The defendants include the mayor and vice-mayor of the City Council, as well as three newly elected City Council members who did not take office until July 1, 2002. The suit asks the court to prohibit the members from holding future email and private meetings and asks for penalties of $43,500 each to be imposed on three of the defendants and $41,000 each on the other two defendants.

The defendants filed demurrers, arguing that use of email does not constitute a meeting under FOIA and that the majority of the e-mails in question were sent before three of the defendants took office. The judge dismissed nine of the counts of the complaints involving e-mails sent before July 1, 2002, on the grounds that the members-elect were not members of the public body before this date, and set a trial for December 13, 2002 to hear the remaining counts.

The suit in Fredericksburg will allow a court to address, for the first time, the gray area of electronic communications and when electronic correspondence may cross the line and become a meeting for purposes of FOIA. The law is clear that an email is a public record under FOIA, but does not directly address the use of email in a meetings context. The law does prohibit electronic meetings, except as specifically allowed in §§ 2.2-3708 and 2.2-3709. However, it is unclear as to whether the use of email constitutes an electronic meeting when messages are exchanged among three or more members of a public body. FOIA does contemplate the use of email by public officials by affirmatively stating that email may be used to separately contact the membership to ascertain a member's position with respect to the transaction of public business. This position is echoed in the opinion of the Attorney General cited above.

Until a line is established by the courts or the legislature as to whether electronic communications can cross the line between correspondence and a meeting, one might best heed the policy of FOIA that the law is written to ensure that public bodies deliberate in public. If a member of a public body is questioning whether an electronic communication might lead to the deliberation of public business by three or more members of that public body, then that communication should probably be saved for a public meeting.

The Office of the Attorney General has addressed the question of whether subsection A of § 2.2-3708 would prohibit an elected member of a local governing body from sending email communications to three or more other members of the governing body. The Attorney General opined that while this section did prohibit a local governing body from conducting a meeting unless the members were physically assembled, it did not prohibit all forms of communication among the members when the body was not physically assembled. The opinion referred to subsection B of § 2.2-3710, which allows the membership to separately contact one another to ascertain a member's position with respect to the transaction of public business, to illustrate that members may communicate outside of a meeting.

Sending an email is the electronic transmission of correspondence over communication networks and does not constitute conducting a meeting. Thus, the Attorney General concluded that the electronic meetings provision of FOIA did not prohibit a member of a governing body from sending a message, even to multiple recipients at the same time. The underlying theme of the opinion seems to rest on the fact that the use of email does not result in the simultaneous communication that occurs when members are sitting together physically. The opinion did note in footnote seven, however, that "[t]his is not to say that, in a particular factual setting, communicating through electronic mail could not violate some other provision of The Virginia Freedom of Information Act or conflict with the policy of the Act."

The council continued to monitor the progress of the two subcommittees created by the council to study (i) the apparent conflict between FOIA and the Virginia Public Procurement Act (VPPA) and (ii) HB 900, referred by the 2002 Session of the General Assembly to the council.

VPPA and FOIA Subcommittee

The subcommittee studying FOIA and the Virginia Public Procurement Act met again with several representatives of state and local government and the media concerning the issues assigned to the subcommittee.

After the first meeting, a draft was circulated that would have amended the meeting exemption subdivision A6 of § 2.2-3711 to include contract discussions and negotiations, for so long as an open meeting would adversely affect either party in the negotiating process. The exemption currently only covers discussions of the investing of public funds where competition or bargaining is involved, where, if made public initially, the financial interest of the governmental unit would be adversely affected.

Concerns were raised that the proposed exemption was too broad, and participants agreed that instead of trying to amend an existing exemption, a new exemption should be created.

After discussion, the subcommittee agreed that an exemption A30 should be added to § 2.2-3711 that would exempt "discussion of the award of a public contract involving the expenditure of public funds, including interviews of bidders or offerors, and discussion of the terms or scope of such contract, where discussion in an open session would adversely affect the bargaining position or negotiating strategy of the public body."

In addition to exemption discussions relating to the award of a contract, the subcommittee thought that a corresponding records exemption should also be created. The following language was proposed to create an exemption A82 at § 2.2-3705 for

The council by consensus agreed to the subcommittee’s proposed amendments described above and will recommend these amendments to the 2003 Session of the General Assembly.

HB 900 Subcommittee

The subcommittee studying FOIA and House Bill 900 met again with several representatives of state and local government and the media concerning the issues raised by the bill.

After the first meeting of the subcommittee, a draft was circulated that would have amended subsection F of § 2.2-3704 to give public bodies the discretion to require a requester to pay for a FOIA response before it would be required to honor a subsequent FOIA request by the same requester.

At the most recent meeting, the subcommittee addressed concerns that there was no provision giving the requester time to pay an amount due for a FOIA request before a public body could begin to refuse subsequent requests. Some participants envisioned that this may create an unfair situation for a requester, since generally a person has a certain amount of time to pay a bill—such as 15 or 30 days—before penalties apply.

As a result of these concerns, it was agreed that the draft should include a 30-day period for a requester to pay any outstanding amounts due from a previous FOIA request before the public body could refuse a subsequent request. The participants at the meeting worked on several drafts of proposed language during the course of the meeting.

The following changes are proposed:

1. As a technical change to the language of FOIA, subsection F of § 2.2-3704 would be changed from "a public body may make reasonable charges for its actual costs," to read "a public body may make reasonable charges, not to exceed its actual costs." This change would make the language in subsection F parallel with the language in subsection G regarding charges for access to electronic records, which currently reads that electronic records "shall be made available to a requester at a reasonable cost, not to exceed the actual cost in accordance with subsection F."
2. As a technical change to the language of FOIA, the paragraph that allows a public body to require a deposit if it determines in advance that charges for producing requested records will likely exceed $200 will be moved into its own subsection and would become subsection H of § 2.2-3704. The language of that paragraph would remain unchanged.
3. The new provision allowing a public body to require a requester to pay for a FOIA response before it will honor subsequent requests will be inserted as subsection I of § 2.2-3704. The language agreed to by the subcommittee would read, "Before processing a request for records, a public body may require the requester to pay any amounts owed to the public body for previous requests for records that have not been paid within 30 days after billing."
4. With these changes, the current subsection H of § 2.2-3704 would be renumbered to become subsection J.

The council by consensus agreed to the subcommittee’s proposed amendments described above and will recommend these amendments to the 2003 Session of the General Assembly.

Other Legislative Updates

The council heard from several state and local agencies concerning their perceived need for amendments to FOIA. Specifically, the council heard from:

• The director of government relations, Fairfax County Public Schools, concerning the need to withhold from release records of the investigation of claims filed against the insurance policy of the school system. Currently there is an exemption for records concerning reserves established in specific claims administered by the Department of the Treasury through its Division of Risk Management or by any county, city, or town. However, it is arguable that the existing law would not exempt such investigative records. Another issue raised was that FOIA contains no exemption for local school boards to withhold confidential investigator notes and other correspondence and information, furnished with respect to an active investigation of an individual employment discrimination complaint. Such an exemption is available under FOIA only for the Department of Human Resource Management.
• The State Board of Elections advised the council that it was evaluating the need to rectify FOIA’s meeting provisions and meetings of state and local electoral boards under state election laws. Each such board has only three members, and each time two such members gather, they are having a meeting under FOIA that requires notice, openness to the public, and minutes. The local boards want to be in compliance with all state laws.
• The Virginia Commission on Youth advised that its study of the release of juvenile records and the consent to the release of those records revealed that under FOIA, a juvenile may not consent to the release of his own medical records. Section 54.1-2969 E 5 allows a juvenile in certain cases to consent to the release of his medical records.
• The Sheriff of York County, for the Virginia Sheriff’s Association, discussed the release of search warrants by the courts. He indicated the FOIA protected many aspects of a criminal investigation and prosecution, but that jeopardy to a case may result from the release of unserved search warrants and search warrant affidavits. Law-enforcement officials are trained to be very specific in detailing pertinent information important to an investigation, including the name of a juvenile or a victim, on the search warrant affadavit. The legislative committee of the Virginia Sheriffs’ Association unanimously endorsed legislation that would allow courts to withhold search warrants, returns and affidavits where jeopardy to the investigation of a case would result. A representative of the Virginia Press Association advised the council that under current law, a commonwealth’s attorney may, for good cause shown, motion the court to seal the warrants. It was also noted that the underlying reason that search warrants are open is that they are part of the preliminary judicial process and due process requires the showing of probable cause by the government.

Other Business

The council discussed instituting a process for the receipt of legislative updates and requests from state and local agencies. The council felt that such legislative discussions should occur in the early fall so that the council could have more time to examine and deliberate on the issues raised and to appoint any subcommittees they deemed necessary.

The council heard a recap from staff about the results of the 2002 Statewide FOIA Workshops held in September at seven statewide locations: Big Stone Gap, Roanoke, Harrisonburg, Loudoun County, Prince William County, Richmond, and Virginia Beach. Staff indicated that 418 persons attended the various workshops and the course evaluation forms turned in by the participants indicated that the workshops received high marks on content and presentation.

In addition, staff indicated that in the 61 days since the last council meeting, staff had responded to a total of 320 inquiries. Of those 320 inquires, the council has issued 10 written advisory opinions and responded to 310 email or telephone inquiries.

The next meeting of the council has been tentatively set for Wednesday, March 5, 2003, at 10:00 a.m. in Richmond.

The Honorable R. Edward Houck, Chair

Maria J.K. Everett, Executive Director