Sunrise over V.A. Capitol.

April 8, 2003, Richmond

2003 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 2003 Session. Nineteen bills amended FOIA, including the creation of eight new meetings and records exemptions and the expansion of eight existing meetings and records exemptions. Several other bills did not amend FOIA directly, but addressed access-related issues.

Both bills recommended by the FOIA Council were passed. Senate Bill 737 (Houck) was the result of the subcommittee studying FOIA and the Virginia Public Procurement Act and Senate Bill 738 (Houck) was a recommendation of the subcommittee studying HB 900 (Purkey, 2002). A complete listing and description of FOIA and other related access bills considered by the 2003Session of the General Assembly is available on the Council’s website.

Bills Referred to the Council for Study

The following five bills were referred to the Council for study by the 2003 Session of the General Assembly:

BILL NUMBER: House Bill 1649

PATRON: Marshall, R.G.

SUMMARY: Freedom of Information Act; charges. Provides that if a requester specifies in writing that he desires to be notified if the charges for his request exceed a specified amount, the public body shall suspend processing the request and notify the requester if the public body determines that the charges will exceed the specified amount. The period within which the public body shall respond under this section shall be tolled for the amount of time that elapses between the notice by the public body and the response of the requester.

BILL NUMBER: House Bill 1797

PATRON: Jones, D.C.

SUMMARY: Freedom of Information Act; closed meetings; disclosure of closed meeting discussions. Provides that a public body may, by agreement of a majority of its members, adopt a rule prohibiting and providing appropriate sanctions for the disclosure by any member of information discussed in a closed meeting of the public body lawfully convened in accordance with § 2.2-3711 and § 2.2-3712 until such time as the subject of the closed meeting is made public by the public body.

BILL NUMBER: House Bill 2626

PATRON: Spruill

SUMMARY: Freedom of Information Act (FOIA); requests by inmates. Removes the provision that denies access to records to persons incarcerated in any state, local or federal correctional facility. As a result, inmates will have a right of access to records under FOIA.

BILL NUMBER: House Bill 2664

PATRON: Jones, S.C.

SUMMARY: Freedom of Information Act; closed meeting procedures; notice. Provides that the notice provisions of the Freedom of Information Act shall not apply to closed meetings of any public body held solely for the purpose of taking testimony or the presentation of evidence concerning the disciplining of any student or employee of any state school system. Currently, notice is not required for closed meetings of any public body held solely for the purpose of interviewing candidates for the position of chief administrative officer.

BILL NUMBER: House Bill 2665

PATRON: Jones, S.C.

SUMMARY: Freedom of Information Act; closed meetings to discuss threats to public safety. Expands the closed meeting exemption for discussions relating to terrorist activity to include other types of threats to the public safety.

The Council discussed the development of a study plan for the bills referred to the Council for study. Staff presented three study plan options: the Council could utilize informal workgroups, as it has done in the past; form subcommittees, an approach that would be slightly more formalized than the workgroup approach; or allow the full Council to consider the bills at bill-specific meetings. It was decided that the Council would invite the patrons of each bill to present the bills and any relevant background at the next meeting, and then subcommittees could be appointed to conduct the studies and report back to the full Council.

Development of Process for Review of Legislative Proposals

The Council discussed what its role should be in receiving other legislative proposals, aside from those referred to it by the General Assembly. The Council deliberated on whether it should provide a forum for people to present proposals or whether it should be more actively involved in deciding whether a proposal furthers an appropriate public policy or needs further study. The question was also raised as to whether the Council should proactively identify "global" access issues for discussion. After lengthy discussion and the receipt of public comment, it was decided to approach legislation and global access issues on a case-by-case basis. The Council will advertise the Council as a forum for presenting legislative proposals as a sort of legislative preview. The Council may then decide on a case-by-case basis which, if any, of those proposals it wishes to discuss further, or whether there are any general areas of interest that the Council wishes to study.

Other Business

It was suggested that the Council set an example by creating a publicly accessible repository for all Council business conducted by e-mail. Concerns were expressed by Council members that before starting such a project, the relationship between FOIA and email should be examined. It was noted that the classification of e-mails is often a very confusing area of the law. The Council adopted this as a global access issue for further discussion. The Secretary of Technology will be invited to the next meeting to discuss the capabilities of technology for state agencies and to address other relevant technology issues.

Of Note

Staff briefed the Council on its plans to conduct FOIA workshops at six locations around the state the second and third weeks of July. In addition to holding the workshops at community colleges, as has been done the past several years, staff will also look into the feasibility at holding sessions at other state institutions of higher education. The program tentatively will include segments addressing access to records and meetings, a segment to discuss "hot topics" such as access to social security numbers and on-line records, and the new terrorism-related exemptions, and a segment about law enforcement records. Cost to attend the workshops will likely be around $30.00 to cover travel and expenses. The fee will include lunch and continuing legal education and law-enforcement credit for participants.

Staff advised the Council that law enforcement agencies should be commended for making FOIA training a priority. In connection with the Virginia FBI National Academy, nearly 200 law enforcement officials from 60 agencies have received FOIA training and copies of the Law Enforcement Guide to FOIA.

Staff presented the latest statistics of the services rendered by Council. Since its meeting in November through April 4, 2003, the Council has answered 377 inquiries, including 15 written opinions. Six written opinions were provided to government, three to citizens, and three to media. 145 informal responses (via phone or email) were provided to government, 140 to citizens and 77 to media.

Public Comment

Public comment was received on several topics. The first comment related to House Bill 2445 and Senate Bill 1149 that excluded the Sexually Violent Predator Commitment Review Commission from the provisions of FOIA. It was suggested that instead of excluding the Commission from FOIA completely, an exemption to address the need for the protection of certain Commission records and meetings from public disclosure be created. The Council was also apprised of an upcoming symposium about secret adoption records. A citizen expressed concern over VIPNet's contract with Game & Inland Fisheries that allows VIPNet to sell information about people who have fishing and hunting licenses. Another citizen suggested that FOIA be clarified to ensure that informal telephonic assemblages are covered by the open meeting provisions, and that the new procurement exemption be narrowed. Finally, comment was heard from the Virginia Coalition for Open Government relating to recent policy statements by its board of directors relating to FOIA issues.

Next Meeting

The next two meetings of the Council have been tentatively set for Monday, June 2 at 2:00 p.m. in House Room D and Monday, September 15 at 2:00 p.m. in House Room D.

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