VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

June 20, 2001, Richmond

The focus of the June council meeting was development of a study plan for the FOIA bills referred from the 2001 Session of the General Assembly that did not advance during the legislative process. The three bills, HB 1597 (Landes), HB 2091 (Devolites), and HB 2700 (Larrabee), would have amended FOIA as it relates to current records exemptions. Delegates Landes and Larrabee presented their bills to the Council and explained the reasons leading to their introduction.

HB 1597

As introduced, HB 1597 sought to amend the Freedom of Information Act to include a right of access to scientific data used as the basis of new laws or regulation. Delegate Landes explained that the genesis for his bill was model legislation suggested by the American Legislative Exchange Council "[t]o protect citizens from arbitrary and capricious regulations promulgated without any impetus that is justified by pertinent, ascertainable, and peer reviewed science" and "guarantee citizens the right to access scientific data that is used to develop public policy."

Questions to the patron reflected a belief that these types of records are currently open under FOIA in accordance with the act's definition of "public records." Concern was raised that amending FOIA to name records with some degree of specificity that are open would tend to suggest that other documents not so listed would no longer be public. As defined in FOIA, "public record" means "all writings and recordings which consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business."

It was the consensus of the council that government agencies and public universities should be surveyed to identify what types of records fall within the purview of HB 1597 and whether this data is currently available to the public under existing law. The council directed its staff to convene a work group of interested parties to discuss the issues attendant to this bill and report its recommendations to the council.

HB 2091

HB 2091, patroned by Delegate Devolites, provides a record exemption for records, documents or other information, the disclosure of which would constitute an unwarranted invasion of personal privacy. Although Delegate Devolites was unable to attend the meeting, she was in agreement that her bill should be considered by the joint subcommittee created pursuant to HJR 789 that is studying the protection of information contained in the records, documents and cases filed in the courts of the Commonwealth.

HB 2700

The council then discussed HB 2700, which provides that the working papers exemption under FOIA shall not be invoked by the mayor or chief executive officer of any political subdivision of the Commonwealth to prevent the sharing of documents or other records that are necessary to the informed deliberation of such local governing body. Delegate Larrabee explained that the genesis of his bill was a situation which arose in his district relating to whether a consultant's report paid for by a city council could be withheld from city council by the city manager as a working paper. Again, the council directed its staff to convene a work group of interested parties to discuss the issues attendant to this bill and report its recommendations to the council.

Staff Report

Staff presented a status report on the number of requests received to date for information on the operation of Virginia's Freedom of Information Act. Since it began operations on July 21, 2000, staff reported that it has received and answered 526 inquiries and has issued 58 written advisory opinions. Of the 526 inquiries (including telephone, e-mail, and letters) 255 requests came from citizens, 154 requests from state and local government officials, and 117 requests from the media.

The council also was briefed about the latest Virginia Supreme Court decision relating to FOIA in the matter of Connell v. Kersey, decided June 8, 2001. In that case, the Supreme Court held that attorneys for the Commonwealth are not "public bodies" as defined in FOIA. While acknowledging that attorneys for the Commonwealth are public officials, the court noted that FOIA distinguishes between "public officials" and "public bodies" in several instances, which clearly indicates that the terms are not synonymous. The Court cited as further evidence § 2.1-342.2, in which the definition of "law enforcement official" includes attorneys for the Commonwealth. The court reasoned that had the General Assembly intended attorneys for the Commonwealth to be treated as public bodies under the general definition, their express inclusion under the definition of "law enforcement official" would have been unnecessary. The court, however, limited the application of its holding by stating that "their holding should not be interpreted as placing any restriction on the application of FOIA to public officials and their offices beyond the narrow focus of this opinion as it relates to FOIA requests made to attorneys for the Commonwealth for records related to ongoing criminal investigations or prosecutions."

Because of the impact of this decision, the council directed its staff to convene a work group of interested parties to discuss the issues attendant to this decision and report its recommendations to the council. This case and the issues it raises will be the subject of the next council meeting to be held on Wednesday, September 12, 2001, at 10:00 a.m. in House Room D of the General Assembly Building in Richmond.

The Honorable Clifton A. "Chip" Woodrum, Chairman
Staff contact: Maria J.K. Everett