FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
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:
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.
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 BuildingProprietary
Records Draft (Staff Draft)
Secrets Draft #4 (Recommended by work group)
Secrets Draft #3
Tuesday, April 25, 2017, 1:30 p.m., House Redistricting
Room, General Assembly Building
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.
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
Subcommittee consists of Council members Coleburn, Hamlett,
King-Casey, Porto, and Stern.
Law-Enforcement Records Subcommittee
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.
Reorganization of FOIA Subcommittee
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.