VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

June 9, 2004, Richmond

The Freedom of Information Advisory Council¹ (the Council) began its meeting by welcoming newly appointed member Delegate Morgan Griffith.

Subcommittee Reports

The Council received progress reports from its subcommittees. The subcommittee on electronic meetings reminded the Council that at the last full Council meeting, representatives from the Clerk's Offices of the Senate and the House raised several issues concerning electronic meeting requirements and requirements for notice of the meetings generally. The subcommittee reported that its meeting was well attended by representatives of the press, public, and state and local government.

The subcommittee discussed several issues relating to the electronic meeting provisions found at § 2.2-3708 of the Code of Virginia and was considering the following areas where change may be warranted. It was suggested that requiring 30 days notice for an electronic meeting was onerous. Often times meetings are not planned 30 days in advance. Also, various situations may arise closer to the meeting day, such as personal emergencies or other exigent circumstances which prevent members of a public body from being physically present at a meeting. Another issue raised was the limitation of only allowing 25 percent of meetings annually to be conducted electronically. For example, if a public body only meets three or four times a year, such as a General Assembly study, it may be difficult or impossible to hold even one electronic meeting. The question was raised as to whether there should be an emergency provision that would allow a member of a public body to participate electronically at the last minute due to a personal emergency without triggering the requirements of an electronic meeting (i.e. no heightened notice, etc.). The law currently requires that an electronic meeting be suspended at all locations if there is an audio or visual malfunction -- even though a quorum must be at one location. The purpose behind this provision is to guarantee public participation at all locations, since all meeting locations must be open to the public. However, it was noted that it might be difficult for one site to realize that another site has lost the audio or the audio/visual feed. Finally, it was noted that while electronic meetings are beneficial to the members of a public body, they can also be used as a means to increase public participation in meetings, and that technology can be used to enhance meetings for both members and the public.

The subcommittee also discussed the general notice requirements for all meetings (and not just electronic meetings). The law currently requires posting notice in two physical locations, and posting electronically is "encouraged." It was noted that the Internet is now a place where interested persons often look for notice of a meeting. Additionally, because the law already requires state public bodies to place their meeting minutes on the Internet, it makes sense to use the Internet to also post notice.

The subcommittee plans to meet again in July (tentatively July 7). Staff will prepare draft legislation that will:

· Shorten the notice requirement for electronic meetings from 30 days to 7 days and remove the 25 percent limitation on the number of electronic meetings. This will be used as a springboard for further discussion. It was decided to not include an "emergency " provision for personal emergencies of members at this time, but it may be discussed further at the next meeting.
· Address the malfunction of the audio or audio/visual feed issue. It was suggested that notice of electronic meetings include a phone number of a contact person that participants at the various sites can call during the meeting to notify others that they have lost audio or audio/video feed.
· Include a requirement that state executive public bodies post notice of all meetings on the Internet, in addition to posting notice at the two physical locations. These public bodies must already post minutes, and as of July 1, post FOIA rights & responsibilities information on their website. Local governing bodies will be encouraged to post notice on the Internet, as there is no current requirement that local governing bodies have websites.

Representatives from the clerks' offices will examine the possibility of establishing telephone numbers that members of the public could use to call into to monitor and listen to meetings (any meeting, not just an electronic meeting) as a means of increasing public participation through technology.

Also of note, the subcommittee advised that they are attempting to set up an audio/visual meeting for its next meeting to allow Mr. Hopkins to join in the meeting from Blacksburg. Not only will this save him five or more hours of driving to physically attend the meeting, it will also give the subcommittee first-hand experience with electronic meetings.

The Geographic Information System (GIS) Subcommittee, comprised of Council members Wiley, Moncure, and Anderson, reported that its initial meeting was well attended by representatives of the media, public and state and local government officials, including many such officials with GIS responsibilities. The subcommittee advised that it had reviewed the provisions of SB 182 (Blevins) that was referred to the Council for further examination. SB 182 would have excluded 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. The subcommittee agreed that SB 182 as drafted should not be recommended. However, the subcommittee felt that the issues raised by the bill were worthy of further discussion and that, relying on the specific GIS knowledge of the interested parties, perhaps a resolution of the issues relating to the accessibility of GIS records could be achieved.

The issues identified included (i) whether portions of GIS records are adequately exempted under A57 of Sec. 2.2-3705; (ii) what additional exemption language may be needed to enable state and local public bodies to receive the data necessary to the preparation of GIS maps from utilities and other third parties; and (iii) whether GIS records can/should be copyrighted and the extent that copyrighting protects against further commercial use of GIS data obtained from public bodies. At the next meeting of the GIS subcommittee to be held on July 13, 2004 at 11 a.m., staff will provide some additional information concerning other states' approaches on this issue and the impact of copyright law on the accessibility of public records.

Public Comment

The Council called for public comment as is its custom and no public comment was offered.

Other Business

To allow its newest appointee to familiarize himself with the various issues before the Council, the Council deferred consideration of HB 487 (Cole). HB 487 would have created an exemption from the mandatory disclosure requirements of FOIA 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. 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.

Also as a courtesy to its newest member, the Council deferred election of its chair and vice-chair until its next quarterly meeting on September 16, 2004.

Of Note

Staff advised that the planning of the annual statewide FOIA workshops is underway. The workshops are tentatively scheduled for October in 5 locations, including Wytheville, Harrisonburg, Fairfax, Richmond, and Tidewater. Staff also advised the Council that for the period March 29 until June 8, 2004, Council staff has responded to 243 email and telephone requests for assistance and has written 7 advisory opinions. Council staff also informed the Council about the model rights and responsibilities document it had prepared in response to HB 358. HB 358, effective July 1, 2004, 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 stated that all cabinet secretaries had been sent a letter in May informing them of the model rights and responsibilities document prepared by staff, along with an offer of further assistance made to any agency in the respective secretariats to help in tailoring the model document to the requirements of the specific agencies. After sufficient time for review and comment by the Council, the model rights and responsibilities document will be posted on the Council's website. It was suggested that the model rights and responsibilities document also be made available to local public bodies even though the provisions of HB 358 apply only to state public bodies.

The discussion of the Council then turned to the issue of allowable charges made under FOIA, noting that charges is often times a contentious issue between a requester and a public body. Concern was raised that the only available remedy for disputes over charges was to the courts. It was noted that such disputes should come first to the Council for resolution as an inexpensive, common sense alternative to lawsuits. Staff advised that it frequently facilitates resolution of charge disputes.

The next meetings of the Council have been set for September 16, 2004 and December 2, 2004, each at 2:00 p.m. in Richmond.

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

¹ Members present: Houck, Griffith, Axselle, Bryan, Edwards, Hallock, Miller, Moncure, Wiley, and Yelich. Members absent: Anderson and Hopkins.