FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
Council 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. However,
the Council reconsidered its study plan at its meeting on
August 14, 2017, and with the conclusion of the work of the
Proprietary Records and Trade Secrets Subcommittee, decided
to establish the Electronics Meeting Subcommittee.
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 King-Casey, Porto,
Seltzer and Vucci.
Tuesday, April 4, 2017, 1:30 p.m., House Room C,
General Assembly Building
Secrets Draft #1 (Based on the VPA White Paper)
Secrets Draft #2 (Staff Draft)
Records Draft (Staff Draft)
May 1, 2017, 1:30 p.m., House Room 2, Capitol Building
Records Draft (Staff Draft)
Secrets Draft #4 (Recommended by work group)
July 11, 2017, 10:00 a.m., House Room 2, Capitol Building
of Confidential Information Draft
Information Alternative Draft
August 1, 2017, 10:00 a.m., House Room 2, Capitol Building
of the terms "Proprietary" and "Confidential"
in FOIA (Updated July, 2017)
of Health letter to FOIA Council
Health Research Board comments
Secrets Draft #3
Tuesday, April 25, 2017, 1:30 p.m., House Redistricting
Room, General Assembly Building
The 2017 Session
of the General Assembly referred House Bill 2316 (Marshall,
D.W.) to the Council for further study. HB 2316 would have
provided that the remote locations from which additional members
of the Tobacco Region Revitalization Commission participate
in a Commission meeting that is conducted through electronic
communication means shall not be required to be open to the
public. At its May meeting the Council directed staff to prepare
a draft that would make this change generally for all public
bodies. At its August meeting the Council established the
Electronic Meetings Subcommittee to study this proposal along
with certain technology issues, such as the definition of
"electronic communication" and the use of mobile
communication devices during a public meeting.
Wednesday, October 4, 2017, 10:00 a.m., House Room
2, Capitol Building
November 1, 2017, 1:30 p.m., House Room 2, Capitol Building
Topics Carried Over for Further Study from HJR No. 96
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 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
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
posting of notice and minutes (§§ 2.2-3707 and
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
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.
Reorganization of FOIA
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.