VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

The Freedom of Information Advisory Council (the Council) held its first meeting of 2006¹ on June 12, 2006. The Council welcomed its newest member, Courtney Malveaux, who is the designee of the Attorney General. The meeting was an organizational meeting to adopt the Council's work plan for 2006. The Council was briefed by staff on FOIA and other related access bills enacted by the 2006 Regular and Special Sessions of the General Assembly and was advised of the latest Supreme Court of Virginia decision in the case of William F. Shaw v. John T. Casteen, et al, a case concerning proper venue for enforcement of FOIA violations. The Council also continued two subcommittees from last year studying the PPEA/PPTA² and electronic communication meetings respectively, as well as appointing a subcommittee to recommend resolution of the issue concerning a required fifth response to FOIA requests.

2006 Legislative Update

The General Assembly passed a total of 16 bills amending the Virginia Freedom of Information Act (FOIA) in 2006. Fifteen of those bills were passed during the 2006 Regular Session; one was passed during the 2006 Special Session I. One bill was recommended by the Council: SB 76 (Houck), concerning the release of certain records under the PPTA and the PPEA. SB 5011, passed during the 2006 Special Session I, also concerned the release of certain records and corresponding closed meetings under the PPTA and PPEA. Of the 16 bills, seven bills created five new record exemptions to FOIA and four bills add three new closed meeting. In addition to SB 76 and SB 5011, described above, four other bills amend existing provisions of FOIA. A more detailed report of the bills passed during the 2006 sessions is available on the Council's website.

Subcommittees

PPEA/PPTA Subcommittee: The PPEA Subcommittee was initially formed in 2005 to study issues raised by HB 2672 (Delegate Plum), which would have amended an existing meeting exemption to allow for closed meetings to discuss records exempt from public disclosure relating to the PPEA. In the 2006 Regular Session, the General Assembly passed SB 76 (Senator Houck), a recommendation of the Council, as a result of the work of the PPEA Subcommittee in 2005. The General Assembly also passed SB 5011 (Senator Houck) during the 2006 Special Session, which addressed certain other issues under the PPEA and the PPTA. The provisions of SB 5011 will expire on July 1, 2007. The PPEA/PPTA Subcommittee was continued by the Council to examine the issues raised by SB 5011 and consists of Council members Axselle (Chair), Edwards, Wiley, and Houck.

Electronic Meetings Subcommittee: The Electronic Meetings Subcommittee was initially formed in 2005 to study issues raised by HB 2760 (Delegate Reese), which would have allowed local public bodies to conduct meetings under FOIA through electronic communication means (telephone or audio/visual). Currently, only state public bodies may conduct meetings in this manner. SB 465 (Senator Edwards), introduced during the 2006 Regular Session, would have clarified that political subdivisions of the Commonwealth, except any unit of local government, are authorized to conduct electronic communication meetings. SB 465 was referred by the General Assembly to the Council for study. The Electronic Meetings Subcommittee was continued to examine this and other related issues, and consists of Council members Edwards (Chair), Fifer, Miller, Wiley, Bryan, Yancey Spencer, and Houck.

"Fifth Response" Subcommittee: During 2005, the Council considered whether to add a "fifth response" within FOIA to address situations where a public body receives a records request for records that do not exist or cannot be found. FOIA currently does not specify what response a public body is to provide in such a situation. The Council appointed a subcommittee consisting of Council members Fifer (Chair), Bryan, Griffith, and Malveaux to examine this issue.

Other Business

Staff advised the Council of the concerns of the Statewide Independent Living Council (SILC) as they relate to conducting open meetings under FOIA. On behalf of SILC, Susan Prokop, Chair, by letter to the Council expressed concern that Virginia's open meetings law have an adverse impact on the ability of people with disabilities to participate on SILC. Specifically, SILC would like the ability to conduct meetings through teleconference without meeting the requirement for a physical quorum at one main location. Staff suggested that the concerns of SILC could be examined as part of the work of the Electronic Meetings Subcommittee. The Council concurred and added this issue to the work plan of that subcommittee.

Senator Houck and Delegate Griffith presented a framed copy of SJR 173 (adopted by the 2006 Regular Session of the General Assembly) to Frosty Landon, executive director of the Virginia Coalition for Open Government (VCOG) commending VCOG on the occasion of its 10th anniversary.

Of Note

The Council was briefed by staff in the case of William F. Shaw v. John T. Casteen, et al, decided on April 13, 2006 by the Supreme Court of Virginia. William Shaw, a citizen of Louisa County, brought a petition for mandamus against the University of Virginia (the University) after the University denied his request for public records. The petition was filed in the Circuit Court of Louisa County, where he resides, pursuant to subsection B of § 2.2-3713 (venue against state entities). The Circuit Court dismissed the petition on grounds that venue was improper. Mr. Shaw moved for a rehearing, which the court denied. It appears that the Court determined that the University is not a state agency in initially dismissing the petition. In denying the motion to rehear, it appears that the Court found that because boards of visitors of public institutions of higher education are specifically mentioned in the definition of public body in § 2.2-3701, the University could only be sued under subsection A of § 2.2-3713 (venue against local public bodies), as that subsection uses the term public body whereas subsection B does not use the term public body. Mr. Shaw appealed to the Supreme Court of Virginia; the Supreme Court refused his petition for appeal, finding no reversible error in the trial court's judgment.

Prior to this case, it has appeared that the University of Virginia is a state entity for FOIA purposes, and venue against the University is therefore found under subsection B of § 2.2-3713. Subsection A of § 2.2-3713 provides a venue for petitions against local public bodies; it seems clear that the University is not a local public body, and that subsection A of § 2.2-3713 is inapplicable to it. However, the trial court ruled otherwise and the Supreme Court, in refusing Mr. Shaw's petition for appeal, found no reversible error in that judgment. Staff brought this matter to the attention of the Council as it appears there may be a need to revise the definition of public body and/or the venue provisions of FOIA in order to prevent such a situation from arising in the future. The Council discussed the issue and directed staff to recommend the necessary statutory amendments to clarify the venue provisions for FOIA petitions.

Staff advised the Council that Virginia's FOIA laws rated 5 on a scale of 7 by the Marion Brechner Center Citizen Access Project at the University of Florida's College of Journalism and Communications for FOIA laws that provide noncriminal penalties for violation by government officials of open records law. Virginia is one of only six states that were rated as high as 5. Sixteen states scored a 4, two states scored a 3, and 26 states and the District of Columbia scored a 1.

Staff advised the Council of the passage of SJR 170 during the 2006 Regular Session designating March 16, in 2006 and in each succeeding year, as Freedom of Information Day in Virginia. Staff advised that on March 10, 2006, in conjunction with the Virginia Press Association, the Virginia Association of Broadcasters, and VCOG, the Council sponsored a "Sunshine Reception" in the General Assembly Building to help kick off Sunshine Week that began on March 13, 2006. The reception was attended by approximately 85 people, including 25 legislators, and provided attendees breakfast, sunshine cookies, and open government bracelets.

Mr. Steven Shoon, a concerned citizen, had written to Council staff questioning the constitutionality of the FOIA provision limiting the rights of incarcerated persons to make FOIA requests. The Council had previously declined Mr. Shoon's request for an advisory opinion on the constitutionality of the provision citing its lack of statutory authority. Section 2.2-3703 C of FOIA affecting the rights of incarcerated persons applies only to persons incarcerated in a state, local or federal correctional facility, whether or not such facility is (i) located in the Commonwealth or (ii) operated pursuant to the Corrections Private Management Act (§ 53.1-261 et seq.). As such, the limitation would not affect the rights of persons institutionalized in setting other than correctional facilities.

As is customary, the Council was apprised of the latest statistics on the services rendered by the Council. For the period December 1, 2005 through May 31, 2006, Council staff responded to 874 informal requests for assistance-- 437 by government officials, 333 from citizens, and 104 from media representatives. Additionally, the Council issued six formal written opinions--four to citizens and two to government officials. For the next meeting, the Council requested to staff to present statistics on the services rendered by the Council on a year-to-year basis so that trends could be ascertained.

Public Comment

Craig Merritt, Esq., on behalf of the Virginia Press Association, advised the Council of the provisions of HB 852 from the 2006 Regular Session of the General Assembly. HB 852 concerned hospital authorities and attempted to standardize powers and duties of hospital authorities in Virginia. As introduced, HB 852 contained broad FOIA exemptions for records and meetings of hospital authorities. These FOIA provisions were removed from the bill by the patron after discussions with the Virginia Press Association and other interested parties. Mr. Merritt questioned whether another bill might again be offered by the patron to exempt hospital authority records from the provisions of FOIA. He commented that it would be preferable to have the issues aired before the Council to ensure meaningful dialog before the press of session. Council directed staff to contact the patron to determine his plans for legislation in this area. If there are plans for legislation, the Council acknowledged the need to have a subcommittee to examine the issue before legislation is introduced.

Future Meetings

The Council set the date for its meetings for the remainder of 2006 as follows: Wednesday, August 23, 2006 and Wednesday, October 11, 2006. Both meetings will be held in Richmond at 1:00 p.m. in the General Assembly Building. Another meeting in November or December may be scheduled if needed.

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

¹ Council members Senator Houck, Delegate Griffith, Bill Axselle, Stewart Bryan, John Edwards, Craig Fifer, Wat Hopkins, Courtney Malveaux, and Mary Yancey Spencer were in attendance at the meeting. Council members E.M. Miller and Nolan Yelich were absent.
² The Public-Private Education Facilities and Infrastructure Act of 2002 and the Public-Private Transportation Act of 1995.