FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
December 1, 2003, Richmond
of Information Advisory Council (the Council)1 began its meeting
by commending outgoing member Rosanna L. Bencoach for her
service to the Council. The Council also welcomed David H
Hallock, Jr. as the new member succeeding Ms. Bencoach.
Council completed its final review of the legislative recommendations
made by its subcommittees concerning the Freedom of Information
Act (FOIA) exemption for records relating to the civil commitment
of sexually violent predators2 and the reorganization of §
2.2-37053. The Council had previously considered these drafts
at its meeting in September 2003, but wanted to allow additional
time to receive comment from interested parties. Although
the drafts were widely publicized, as directed by the Council,
staff reported that no further comments or changes to the
drafts had been received. The Council unanimously adopted
both drafts and will recommend them to the 2004 Session of
the General Assembly. With regard to the reorganization of
§ 2.2-3705, the Council directed staff to include in
its 2003 annual report, that the reorganization of §
2.2-3705 was purely a technical exercise and that no substantive
changes to the current law were made.
forum for receiving and/or reviewing requests for legislation
impacting FOIA, the Council heard from several parties. A
summary of each presentation follows:
Frederick County Department of Parks and Recreation; protection
of records about children enrolled in their camp and sports
programs. It was noted that there are approximately 550 children
enrolled in the camp and sports programs offered by Frederick
County. As a matter of registration, the County routinely
collects a minimum of information on each child, including
the name, home address and telephone number, date of birth,
social security number, and any disabilities. In addition,
the county advised that an additional 300 children are enrolled
in after school programs through the local department of social
services, which in addition to the information collected above,
includes a listing of the child's medications, allergies,
and the money a parent pays for a child's participation.
Virginia State Bar (VSB); availability of VSB membership lists.
This issue was the subject of the Council's advisory opinion
that VSB membership lists were subject to FOIA's mandatory
disclosure requirements. The VSB proposed language to "overturn"
the Council's opinion and make VSB membership lists exempt
from the mandatory disclosure provisions of FOIA.
City of Richmond/City of Norfolk; protection of investigations
conducted by local auditors. This request seeks to expand
current record exemption # 43 of 2.2-3705 to include investigations
conducted by local auditors. Currently, #43 provides protection
for investigations of the Auditor of Public Accounts, JLARC,
the State Internal Auditor and certain committees created
by Fairfax County.
Virginia Information Technology Agency (VITA); update of technology
terms in FOIA. After Council staff conducted FOIA training
for senior staff at VITA, they expressed concern that many
of the technology terms used in FOIA, whether in definitions
or exemptions are obsolete. VITA suggested that the Council,
with the assistance of VITA, study this issue and make recommendations
for updating the nomenclature.
the protection of children's records maintained by local departments
of parks and recreation, it was noted that these records were
similar to scholastic records of children in school, even
though they are not maintained by an educational institution
as required by FOIA. The consensus of the Council was that
should legislation be introduced, it should not be limited
to the specifically named localities. Instead, any such exemption
should be universally applied but narrowly tailored to protect
only those records that are sensitive. A suggestion was made
that Virginia needs a coherent, consistent policy as it relates
to records of children, and perhaps in the future, the Council
could examine this issue further.
about the release of VSB membership lists centered on whether
any other regulatory agency limits the distribution of the
names and addresses of its regulants. The representative of
the VSB indicated that to her knowledge, only the State Corporation
Commission limited the distribution of a listing of licensed
insurance agents. The concern of the VSB was the privacy of
its members that were not actively engaged in the practice
of law. It was noted that the name, address, and telephone
number of individual members is always released if requested.
However, the entire membership lists was routinely sold to
persons offering continuing legal education and certain other
requesters. The Council took no position of the legislative
proposal of the VSB.
the protection of records of local internal auditors, the
Council again expressed its belief that if legislation is
introduced, it should apply all localities and not just individually
named localities. It was noted that the public policy has
already been articulated in FOIA by describing the records
at the state level that may be exempted and also limiting
protection of these records to ongoing investigations. It
was brought to the Council's attention that there are a number
of localities, usually cities, that have internal auditors
and usually their responsibilities are set out in the respective
declined VITA's suggestion that it create a subcommittee to
study the issue of obsolete technology nomenclature in FOIA.
Although interested in pursuing the issue, the Council discussed
the appropriate forum for what it perceived to be a technical
issue. The consensus of the Council was for Council staff
to convene a task force, similar to those convened by the
Virginia Code Commission, to bring interested parties together
to resolve the issue. Council staff would act as the facilitator/moderator
of the task force.
legislative issue was raised at the meeting concerning the
need for an exemption for the list of cellular phones numbers
of local public safety employees. This proposal was a recommendation
of the Virginia Association of Counties.
by the Council at its last meeting, staff advised the Council
on the proposed legislation being considered by the chief
medical examiner. Staff reported that the office of the chief
medical examiner had been contacted and had reported that
no legislation would be forthcoming from that office. Initially,
the medical examiner had sought clarification about access
to records in its possession from third parties, including
law-enforcement agencies and others.
of the Council's 2003 annual report was distributed. By law,
the Council is required to report to the Governor and the
General Assembly on its activities during the past year. At
the direction of the chair, council members were asked to
submit their changes or suggestions to Council staff within
the next two weeks.
meeting of the Council has been set for Monday, March 29,
2004, at 2:00 p.m. in Richmond. The Council indicated that
at this meeting it will set all of its meetings in 2004.
R. Edward Houck, Chair
Maria J.K. Everett, Executive Director
All members of the Council were in attendance, except Mssrs.
Axselle and Hopkins, and Delegate S. C. Jones.
2 The essence of the proposed draft would protect
the mental health assessments of individuals subject to the
Sexually Violent Predators Civil Commitment Committee's review
and other records identifying their victims from public disclosure,
and to protect discussions of those records in a public meeting.
The removal of the Civil Commitment Review Committee from
the provisions of FOIA, which was enacted in 2003, would be
replaced with the proposed amendments.
3 Generally, the proposed draft would repeal §
2.2-3705, and create seven new sections grouping the exemptions
by general subject area. The proposed groupings would include
exemptions of general application, exemptions relating to
public safety, exemptions relating to administrative investigations,
exemptions relating to educational records and educational
institutions, exemptions relating to health and social services,
exemptions relating to proprietary records and trade secrets,
and exemptions applicable to specific public bodies.