VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

March 29, 2004, Richmond

The Freedom of Information Advisory Council (the Council) held its first quarterly meeting of 2004 The purpose of the meeting was to review legislative changes to the Freedom of Information Act (FOIA) made by the 2004 General Assembly, identify topics for study, including bills referred to the Council for further examination, and to develop a study plan for this year's work. At the request of the chairman and as a courtesy to Delegate Griffith, patron of HB 1357, HB 1357 was considered out of the order of business as stated on the agenda. HB 1357, relating to FOIA and its application to the General Assembly, provides that public access to certain meetings of the General Assembly shall be governed by rules established by the Joint Rules Committee. Floor sessions and meetings of committee, subcommittee, and joint committees of conference will continue to be open to the public. As required by HB 1357, the Joint Rules Committee must hold regional public hearings at least 60 days before the adoption of the rules and must also provide a copy of such rules to the Council. The bill further provides that meetings of political party caucuses of either house of the General Assembly are excluded from the meeting provisions of FOIA. Finally, the bill requires the Council, upon request, to provide technical assistance to the Joint Rules Committee in the implementation of HB 1357. Delegate Griffith indicated that he looked forward to working with the Council to address the gray areas of the law in this regard and to work through them in an expeditious manner. The chair indicated that because the bill concerned public access and the General Assembly, he wanted to create a subcommittee comprised of past and present General Assembly members and media representatives on the Council. A subcommittee was appointed consisting of Council members Senator Houck, Delegate Jones, Stewart Bryant, John Edwards, and Bill Axselle. The Council discussed the need to maintain the balance already expressed in the law between the right of public access and the need of government to function. Public comment was invited by the Council. The Council directed that its website be used as a primary vehicle for receipt of public comment on HB 1357 as well as providing updates on the work of the subcommittee.

2004 Legislative Update
The Freedom of Information Advisory Council ("the Council") began its meeting with a legislative update recapping the FOIA and related access bills passed during the 2004 Session. Eighteen bills amended FOIA, including the creation of seven new meetings and records exemptions and the expansion of four existing meetings and records exemptions. Several other bills did not amend FOIA directly, but addressed access-related issues. Of note, both bills recommended by the Freedom of Information Advisory Council passed -- SB 352 (Houck) reorganizing the records exemptions and SB 354 (Houck) relating to records and meeting exemptions for the Civil Commitment Review Committee. A complete listing and description of FOIA and other related access bills considered by the 2004 Session of the General Assembly is available on the Council's website.

Bills Referred to the Council for Study
The following three bills were referred to the Council for study by the 2004 Session of the General Assembly:

SB 182 (Blevins); FOIA and GIS systems. Excludes from the mandatory disclosure requirements of FOIA maps contained in a geographic information system that are developed from a combination of high resolution technologies, including digital orthophotography, digital terrain models or related ancillary proprietary data produced by any local governing body or by the Virginia Geographic Information Network (VGIN) division of the Virginia Information Technologies Agency.

HB 487 (Cole); FOIA; record exemption; owner/operators of private aircraft. Provides an exemption for records of licensed public use airports containing information concerning (i) the identity of the owners or operators of aircraft based at the airport, including the owner's or operator's name, home address and telephone number and (ii) the tail numbers and other identifying information relating to the aircraft based at the airport from the mandatory disclosure requirements of FOIA.

HB 761(Hurt); Virginia State Bar; availability of membership lists. Clarifies that the provisions of FOIA do not apply to requests for copies of the Virginia State Bar membership lists. The bill does provide, however, that copies shall be made available, upon request, to Virginia organizations that regularly conduct continuing legal education programs in the Commonwealth and that such lists shall be provided at a reasonable cost. Currently, copies of this list are provided to legal aid societies and the Virginia Law Foundation as well as continuing legal education providers on a cost recovery basis.

The Council discussed the three bills and the issues each presented. With regard to SB 182, the Council acknowledged a need for in-depth examination of the nature of GIS records and access and a subcommittee was appointed consisting of Council members Roger Wiley, Tom Moncure and David Anderson. Staff advised the Council that HB 487 was introduced in response to a situation involving FOIA request made by a citizen who made complaints about the operation of planes at a regional airport. The citizen eventually made certain threats against the airport and subsequently filed his FOIA request. The Council was advised of the existence of a website maintained by the Federal Aviation Administration (FAA) which would allow any person to ascertain the name and address of owners of aircrafts as well as aircraft identifying information. The FAA website provides this information in a variety of formats, including the ability to search on a state-by-state basis or by a particular county within a state. It was the consensus of the Council that HB 487 raised a clear policy question of whether Virginia's FOIA should exempt records of licensed public use airports in light of the availability of such information of the FAA website. It was decided that the full Council would review this issue. HB 761 would have exempted from FOIA the membership lists maintained by the Virginia State Bar. The Council had previously opined that membership lists maintained by the Virginia State Bar were subject to the mandatory disclosure requirements of FOIA. HB 761 was introduced to overturn the advisory opinion of the Council and to make it unequivocal such lists are not subject to FOIA. Given the background of this bill, the Council felt that further study was unnecessary.

Other Business
The Council discussed HB 358, which requires all state public bodies created in the executive branch of state government and subject to FOIA to make available certain information to the public upon request and to post such information on the Internet, including: (i) a plain English explanation of the rights of a requester under FOIA, the procedures to obtain public records from the public body, and the responsibilities of the public body in complying with FOIA; (ii) contact information for the person designated by the public body to (a) assist a requester in making a request for records or (b) respond to requests for public records; and (iii) any policy the public body has concerning the type of public records it routinely withholds from release as permitted by FOIA. The bill requires the Council to assist state public bodies in the development and implementation of this information, upon request. Council staff advised that they are currently working on a model rights and responsibilities document to share with state agencies and will offer the expertise of the Council in customizing the model document to meet the needs of each individual agency.

The Council next received a request from the Clerks' Offices of the Senate of Virginia and the House of Delegates to change the requirement for where notice is physically posted for legislative meetings from in the Clerk's office to the Internet. Representatives of the Clerk's office stated that because of the remote location of the respective Clerk's offices, the public is not served by posting notice there. They stated that notice of legislative meetings would continue to be posted on the bulletin board in the lobby of the General Assembly Building as required by law. Additionally, the representatives requested the Council to review the electronic meeting notice requirements of FOIA. They stated that it was practically impossible to meet the requirement to post notice 30 days in advance of any electronic meeting. A subcommittee was appointed to study these requests and is comprised of Council members Wat Hopkins, E.M. Miller, and David Hallock.

The Council next discussed the need to form a task force to review the issue of obsolete "technology" nomenclature in FOIA and to make recommendations for change to FOIA Council. At its last meeting, the Council agreed that while no formal study was necessary, a task force comprised of interested persons would be advisable to review obsolete technology language contained in FOIA. The Council directed staff to act as facilitator/moderator of this task force. Participation on task force will be open to all interested parties, including representatives of the Virginia Information Technologies Agency (VITA). Interested persons should contact staff of the FOIA Council.

Fredericksburg Email case

Staff reported that on March 5, 2004, the Virginia Supreme Court issued an opinion concerning FOIA (Beck v. Shelton, No. 030723), with a holding directly relevant to all elected officials in Virginia -- from members of the General Assembly to members of local school boards. Beck had primarily drawn interest because it is the first authoritative statement of law in Virginia as to whether use of electronic mail ("e-mail") by public officials could constitute a meeting under FOIA. Beck also examines broader issues as to the applicability of FOIA to members-elect of a public body and the definition of a meeting. The Court held that FOIA does not apply to members-elect of a public body; that generally, use of email by three or more members of a public body to discuss public business is not a meeting; and that the gathering of three members of a public body at a citizen-organized meeting did not violate FOIA. Staff advised that it has prepared an issue brief of the case which is available on the Council's website.

Public Comment

As is its custom at each meeting, the Council received public comment. On the issue of the application of FOIA to meetings of the General Assembly (HB 1357), the Council was provided the results of research conducted by a citizen on legislative rules of other states as well as such states' relevant constitutional provisions on this issue. The Virginia Press Association and the Virginia Association of Broadcasters expressed their interest in participating in the study and offered some issues for consideration in the conduct of the Council's study of HB 1357, including the differentiation between the various types and functions of General Assembly caucuses, the conduct of meetings of the General Assembly while in session versus meetings conducted during the interim, and whether the subject matter under discussion should be controlling in determining public access. The Virginia Coalition for Open Government (VCOG) expressed its opinion that legislative exemptions should continue to be placed within FOIA and not in House or Senate procedural rules. On the issue of SB 182, access to GIS maps, VCOG stated that it is opposed to "add-on" fees for high resolution GIS maps. The City of Virginia Beach provided background information on GIS maps and expressed its willingness to assist in the study of SB 182.

Future Meetings of the Council

The Council set all of its meeting dates for calendar year 2004. The next meeting of the Council has been set for Wednesday, June 9, 2004, at 2:00 p.m. in Richmond. Additional meeting dates set by the Council include Thursday, September 16, 2004, and December 2, 2004. All meetings of the Council will begin at 2:00 p.m. and will be held in Richmond.

The Honorable R. Edward Houck, Chair
Maria J.K. Everett, Executive Director

¹ All members of the Council were present, except E.M. Miller, Jr.