VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

2017 Subcommittees

The 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.

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 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
Summary
Trade Secrets Draft #4 (Recommended by work group)
Proprietary Records Draft (Staff Draft)

Tuesday, July 11, 2017, 10:00 a.m., House Room 2, Capitol Building
Agenda
Summary
Definition of Confidential Information Draft
Financial Information Alternative Draft
Deletion Draft

Tuesday, August 1, 2017, 10:00 a.m., House Room 2, Capitol Building
Agenda
Summary
Deletion Draft #2
Use of the terms "Proprietary" and "Confidential" in FOIA (Updated July, 2017)
VA Department of Health letter to FOIA Council
VA Resources Authority comments
Commonwealth Health Research Board comments

Work Group

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

2. Electronic Meetings Subcommittee

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.

Meetings Scheduled:
Wednesday, October 4, 2017, 10:00 a.m., House Room 2, Capitol Building
Agenda
Electronic Meetings Draft

Wednesday, November 1, 2017, 1:30 p.m., House Room 2, Capitol Building
Agenda
Combination Draft
Tobacco Commission Proposal Draft
Distinctions Made in FOIA Concerning Public Meetings and Electronic Communications
Attendance at Remote Locations of Public Meetings Using Electronic Communications

Other Topics Carried Over for Further Study from HJR No. 96

Personnel Records
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.

Technology Issues
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.

Law-Enforcement Records

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.

Reorganization of FOIA

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.