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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA

2017 Subcommittees

It is anticipated that for 2017, the Council will establish one subcommittee at a time that will study topics one at a time (i.e. serially), rather than having multiple subcommittees studying multiple issues concurrently. It is expected that the subcommittee will meet two to three times on each issue and make a recommendation to the full Council. The Council has carried over five topics for study from the House Joint Resolution No. 96 (2014) study that concluded last year. Members indicated their interest in studying the various topics at the March 7, 2017 meeting of the full Council as follows:

2017 Study Plan

1. Proprietary Records and Trade Secrets Subcommittee

In 2014 the Virginia Press Association presented a white paper suggesting the creation of a single general exemption rather than continuing to proliferate many specific exemptions using similar language. This topic was studied in detail by the Records Subcommittee, the Proprietary Records Workgroup, and the full Council from 2014 through 2016. Many draft proposals were considered, but there was no consensus to move forward and so the HJR No. 96 study concluded without a recommendation on this topic. The Subcommittee consists of Council members Delegate LeMunyon (Chair), King-Casey, Porto, Seltzer and Vucci.

Meetings Scheduled:
Tuesday, April 4, 2017, 1:30 p.m., House Room C, General Assembly Building
Agenda
Summary
Trade Secrets Draft #1 (Based on the VPA White Paper)
Trade Secrets Draft #2 (Staff Draft)
Proprietary Records Draft (Staff Draft)

Monday, May 1, 2017, 1:30 p.m., House Room 2, Capitol Building
Agenda
Trade Secrets Draft #4 (Recommended by work group)
Proprietary Records Draft (Staff Draft)


Work Group

Meetings Scheduled:
Tuesday, April 25, 2017, 1:30 p.m., House Redistricting Room, General Assembly Building
Agenda
Trade Secrets Draft #3

2. Personnel Records Subcommittee

Personnel records were studied by the Records Subcommittee, two work groups, and the full Council from 2014 through 2016. Amendments to the existing exemption passed the 2017 Session of the General Assembly as part of the omnibus legislation recommended by the Council (HB 1539). Additional issues were identified but not resolved concerning the treatment of letters of recommendation, the lack of a definition of "personnel records," and the interaction of provisions concerning personnel records with administrative investigations. The Subcommittee consists of Council members Coleburn, Dooley, Hamlett, King-Casey, Porto, and Vucci.

3. Technology Issues Subcommittee

Over the course of the HJR No. 96 study, several issues were raised and studied by both Subcommittees and the Council concerning the effects of technology regarding access to both records and meetings:

  • FOIA policy statement. At the beginning of the HJR 96 study, staff suggested that FOIA be amended to include a policy statement to the effect that: "Any public body procuring any computer system, equipment or software, shall ensure that the proposed system, equipment or software is capable of producing public records in accordance with this chapter." (Language from § 2.2-1111, applicable to the Department of General Services.)
  • "Vendor proprietary software” (§ 2.2-3705.1(6)) and "Computer software developed by or for [a public body]" (2.2-3705.1(7)).
  • Website posting of notice and minutes (§§ 2.2-3707 and 2.2-3707.1).
  • Texting among members during public meetings.
  • Technical terminology & definitions
  • Access to databases; the Supreme Court of Virginia is scheduled to hear a case concerning access to and custody of databases this year, and so the Council decided to wait until the Court has rendered its decision before studying this issue further.
The Subcommittee consists of Council members Coleburn, Hamlett, King-Casey, Porto, and Stern.

4. Law-Enforcement Records Subcommittee

Access to law-enforcement records was studied by a Criminal Investigative Records Subcommittee of the FOIA Council from 2010 through 2012. The main issue of contention raised was regarding the treatment of criminal investigative files. Such files may be withheld under current law even after an investigation or prosecution is concluded or no longer active. Bills introduced in 2010, 2011, 2012, and 2016 would have limited application of the exemption to active or ongoing investigations, but those bills failed to be enacted. The study from 2010 to 2012 resulted in Council-recommended legislation amending § 2.2-3706 in 2013 to reorganize the section for clarity, to allow verbal responses to requests for criminal incident information, and to clarify that 911 calls and other calls for service are subject to the provisions of FOIA; however the study did not result in any consensus on the issue of access to criminal investigative records. The issue was raised again in 2016 but only studied in cursory fashion due to time constraints. The Subcommittee consists of Council members Coleburn, Porto, Seltzer and Vucci.

5. Reorganization of FOIA Subcommittee

HJR No. 96 directed the Council to examine the organizational structure of FOIA and make recommendations to improve the readability and clarity. A draft was presented for consideration that would organize FOIA into articles for further clarity, but no consensus was reached. The Subcommittee consists of Council members Coleburn, Hamlett, King-Casey, Porto, Seltzer, Stern and Vucci.

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