VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

June 2, 2003, Richmond

The Freedom of Information Advisory Council began its meeting by discussing the disposition of the five bills referred to it for study by the 2003 Session of the General Assembly.¹ The Council was advised that although the patrons had been invited to present and discuss the impetus for their bills with the Council, none had accepted the invitation. Delegate S. C. Jones, vice-chair of the Council, noted that his two bills referred to the Council for study had been introduced "by request" and that no further action on them was necessary. A motion was made and passed by a vote of 10-1² that, in light of the fact that the patrons were notified and none elected to go forward with their bills, the Council should take no further action on the referred bills. Additionally, the Council agreed that should other bills referred to it in the future raise pressing or significant public policy issues that warrant additional study and public comment, the Council would undertake further examination of the public policy issues raised by the bills.

Under the next heading on the agenda, E-Mail and the Freedom of Information Act; Using Technology and Complying with the Law, the Council heard from a representative of the Office of the Secretary of Technology on the current email retention practices of the Department of Information Technology and the feasibility of developing statewide email guidelines. Additionally, staff updated the Council on the use of email and the requirements of FOIA and the Public Records Act (PRA). The use of email in the business place is becoming increasingly common and is often a preferred mode of communication. For state and local government officials and employees, the application of FOIA relating to access to records and the PRA relating to the retention of records comes into play. Government officials and employees frequently ask two key questions about the use of email -- "Can the public and media access my email under FOIA?" and "Do I have to save my e-mail?" Email is a generic term, and generally refers to any communication that requires an electronic device for storage and/or transmission.³ Email is a medium for correspondence -- essentially, email is the "envelope" for the communication. It can be used to communicate one-to-one, or one-to-many over the computer. Each user has an email address, and messages received at that address are stored in electronic mailboxes until the recipient fetches the messages. After reading a message, the user may save it on his or her computer, forward it to other email addresses, respond to it, or delete it. It is also possible to send attachments, such as word processing files, spreadsheets, or digital images along with an email message.

For purposes of FOIA and the PRA, email provides a medium for communication, much like a telephone or the U.S. Mail provides a means of communication. The fact that a communication is sent via email is not alone conclusive of whether that email must be accessible to the public under FOIA or retained pursuant to the PRA; one must look at the text and substance of the communication to determine whether it is indeed a public record.

Tips for using and managing e-mail
· All e-mails related to public business are subject to the provisions of FOIA and the PRA, and should be managed in the same manner as all other public records.

· There is a tendency with email to hit the delete button as soon as you are finished with a particular message. However, consideration must be given to whether that particular email must be retained for purposes of the PRA -- you can't automatically delete your e-mail, just as you can't automatically throw away paper correspondence and records.

· FOIA governs access to records. The PRA dictates how long you are required to keep certain records. If a government entity keeps an email (or any other record) for longer than its retention schedule requires, that email will still be subject to FOIA if requested. Conversely, if a government entity properly disposes of a record pursuant to a retention schedule, and a subsequent FOIA request is made for that record, FOIA does not require the government entity to recreate the record.

· Email is often used as a substitute for a telephone call and is quite informal. However, email creates a record of that communication that must be retained pursuant to the PRA and will be available upon request to the public under FOIA. Consider the consequence of choice to use email instead of the telephone -- it may not be in your best interest to be as informal on email as you are on the telephone.

· The Library of Virginia discourages the practice of maintaining permanent records solely in electronic format, without a paper or microfilm backup.⁴ For records that do not need to be maintained permanently, these e-mails can be printed out and stored in a traditional, paper file (and the electronic copy can be deleted) or electronic folders can be created on the computer to organize e-mails based on functions, subjects or activities. The Library of Virginia suggests that these folders are assigned to your home directory on the computer, and not on the network. By way of example, at the FOIA Council we print a copy of all of the FOIA questions that we receive via e-mail, along with our corresponding response, and file the paper copy in a chronological file. After we have printed a copy to retain for our records, we delete the email off of the computer.

· Public officials and employees should not commingle personal and official e-mails. Private e-mails do not need to be retained; e-mails relating to the transaction of public business do. From an email management perspective, it is probably not a good idea to mix personal and official business in the same e-mail. Official e-mails that need to be retained should be maintained in separate folders.

Public Comment

A representative of the Virginia Press Association expressed concern related to House Bill 2445 and Senate Bill 1149 from the 2003 Session 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 concurred that perhaps that discussion of this alternative may have been missed during the press of Session. As a result, the Council appointed a subcommittee of Messrs. Moncure and Edwards to examine the issues raised by HB 2445 and SB 1149. Meeting dates of this subcommittee will be posted as soon as scheduled and will also appear on the Council's website to ensure participation by any and all interested parties.

Other Business

Mr. Moncure suggested that the Council consider a reorganization of § 2.2-3705 of the Code of Virginia, the records exemption section of FOIA. Currently, this section contains 81 exemptions from the release of records. As a practical matter, inclusion of this section in any piece of legislation expands the size of the bill by 10 or more pages, while the proposed amendment to this section may be only a few sentences. This makes the bill cumbersome and confusing to the public and legislators alike. He suggested that a subcommittee be formed to reorganize this section by identifying categories into which many of the exemptions could be grouped, and making each category a separate section in FOIA. The Council expressed concern that in so doing, it would be important not to broaden the current exemptions found in FOIA. A subcommittee was appointed, consisting of Messrs. Moncure, Miller, and Axselle, to undertake this task. Meeting dates of this subcommittee will be posted as soon as scheduled and will also appear on the Council's website to ensure participation by any and all interested parties.

Staff suggested that the Council consider dedicating at least one meeting each year to setting an example for other public bodies to follow in complying with FOIA. This meeting segment would be titled, "Setting the Example" and would consist, among other things, of the Council conducting an electronic meeting to have first-hand experience with the issues raised by audio and/or audio/visual meetings authorized by FOIA for state public bodies. Because the Council is required by law to receive reports from public bodies conducting these types of meetings, it would be beneficial in identifying the advantages and disadvantages of electronic meetings as they relate to public access. Other topics suggested from "Setting the Example" included new member training, email retention and access, and other related issues faced by public bodies.

Of Note

Staff presented the latest statistics of the services rendered by Council. Since its meeting in April through May 30, 2003, the Council has answered 179 inquiries, including 14 requests for written opinions. In that time frame, five written opinions have been completed, with nine requests for written opinions pending. Of the 165 informal responses (via phone or e-mail), 68 were provided to government, 79 to citizens and 18 to media.

Staff briefed the Council on its plans to conduct FOIA workshops at six locations around the State the second and third weeks of September (not July as had been tentatively planned). 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 $35 to cover travel and expenses. The fee will include lunch and continuing legal education and law-enforcement credit for participants.

The next meeting of the Council has been set for Monday, September 15, 2003, at 2:00 p.m. in Richmond.

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

¹House Bill 1649 (Marshall, R.G.); 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.
House Bill 1797 (Jones, D.C.); 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.
House Bill 2626,(Spruill); Freedom of Information Act; 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.
House Bill 2664, (Jones, S.C.); 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.
House Bill 2665, (Jones, S.C.); 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.

²Ayes--Houck, Jones, Wiley, Bryan, Moncure, Edwards, Axselle, Benchcoach, Miller, and Yelich; Nays--Hopkinsty.

³Library of Virginia, Electronic Records Guidelines (effective June 10, 2002).

⁴Library of Virginia, Electronic Records Guidelines (effective June 10, 2002).