Sunrise over V.A. Capitol.

January 7, 2002, Richmond

The Freedom of Information Advisory Council (FOIA Council) held its eighth meeting on January 7, 2002. The meeting focused on the recommendations of the subcommittees on the terrorism and Connell v. Kersey and a review of legislation to be recommended by the FOIA Council to the 2002 Session of the General Assembly.

Terrorism Subcommittee

Roger Wiley, a member of the FOIA Council, reported on the progress of the Terrorism Subcommittee. The subcommittee consisted of Nolan T. Yelich, John Edwards, and Roger Wiley. The subcommittee unanimously agreed on draft language to expand the current record exemption relating to terrorism. The exemption, available to any public body, would protect plans that prevent or respond to terrorist activity to the extent that they contain specific tactical plans, security or emergency procedures, which, if disclosed, would jeopardize the safety of governmental personnel or general public security of any government facility, building or structure, information storage system. The subcommittee also recommended that the current terrorism exemption from the open meeting requirement be expanded to will allow any public body to convene a closed meeting for the discussion of plans to protect public safety as it relates to terrorist activity and includes briefings by staff members or legal counsel concerning actions taken to respond to such activity or a related threat to public safety. The FOIA Council voted to adopt the recommendations of the terrorism subcommittee.

Connell v. Kersey

Frank Ferguson, a member of the FOIA Council, reported on the progress in the Connell v. Kersey subcommittee. The subcommittee consisted of Mr. Ferguson, Mr. Wiley, and Dick Trodden, Arlington County's attorney for the Commonwealth. Mr. Trodden recommended a parallel exemption to the Parole Board for the attorneys for the Commonwealth. Mr. Ferguson and Mr. Wiley recommended legislation that would provide a broad exemption for the attorneys for the Commonwealth but clearly indicates that constitutional officers are subject to FOIA.

Critical Infrastructure Information Act

Senator Bolling, chairman of the Critical Infrastructure Advisory Committee of the Joint Commission on Technology and Science (JCOTS), presented legislation under consideration by JCOTS regarding the identification of critical infrastructure in Virginia. The legislation's purpose is to protect the records that are created to identify the risks of terrorism in critical infrastructure, which is patterned after the federal model. Virginia would be the first state to undertake this task and is expected to engage private business to help. It is expected that the private sector will be apprehensive if the information would be subject to disclosure under FOIA. JCOTS has not taken a position on this issue and Senator Bolling is uncertain whether he will introduce the legislation. The Council offered its assistance to determine what FOIA already exempts from mandatory disclosure.

Sunset Provision

The Council reviewed the draft legislation for the removal of the sunset provision, which legislation would continue the existence of the Council as a permanent legislative agency. It was noted that the FOIA Council's proposed budget for the 20022004 biennium has been included in the Governor's Budget.

Other Business

The Council heard from the Chief Investment Officer of the Virginia Retirement System (VRS) regarding legislation that is being drafted to amend the VRS FOIA exemption with respect to closed meetings for discussions of investment transactions.

Martika A. Parson, a member of the FOIA Council, resigned from the Council to accept additional duties at the Office of the Attorney General.

The Honorable Clifton A. "Chip" Woodrum, Chairman
Maria J.K. Everett, Executive Director