VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

August 19, 2002, Richmond

The Freedom of Information Advisory Council (the "Council") received progress reports from the two subcommittees created by the Council at its last meeting to study (i) the apparent conflict between FOIA and the Virginia Public Procurement Act (VPPA) and (ii) HB 900 referred by the 2002 Session of the General Assembly to the Council.

VPPA and FOIA Subcommittee

Subcommittee member Roger Wiley reported that the subcommittee, along with several representatives of state and local government and the media, examined the apparent conflict between the VPPA and FOIA as it relates to the confidentiality of procurement transactions and the open meetings provision of FOIA. He noted that although an exemption exists for a record relating to a procurement transaction before a bid is accepted, there is no parallel exemption for meetings for discussion of bids by a public body prior to the award of the contract. This lack of an exemption is most often problematic in small, local governments. In state agencies and larger localities, staff of public bodies often have the authority to discuss and decide whether or not to award a contract, thus the public body itself does not always need to meet to discuss the award. Participants in the meeting noted that in addition to procurement situations, there is no clear exemption allowing for a closed meeting for contract negotiations generally. The subcommittee members and other participants agreed to a proposal to amend § 2.2-3711(A)(6) to include contract discussions and negotiations under the exemption. The exemption currently allows for a closed session to discuss "[t]he investing of public funds where competition or bargaining is involved, where, if made public initially, the financial interest of the governmental unit would be adversely affected." It was suggested to amend this language to also allow a closed meeting to negotiate or award a contract, but only for so long as there would be an adverse affect to either party in the negotiating process. The proposed exemption would only apply prior to the award of a contract or until a decision was made by a public body to not award a contract.

Mr. Wiley acknowledged that the subcommittee’s recommended draft only addressed the disconnection in the VPPA and FOIA, but did not address the issue of a records exemption for a public body’s contract negotiations generally. He requested that the subcommittee meet again to continue its deliberations on the appropriateness of a general record exemption under FOIA for contract negotiations.

HB 900 Subcommittee

Subcommittee member John Edwards reported that the HB 900¹ subcommittee, along with several representatives of state and local government and the media, reviewed HB 900. He indicated that the subcommittee agreed that it had no interest in pursuing HB 900 as introduced. However, in response to some of the issues raised by discussion of the bill, it was proposed that FOIA be amended to give public bodies the discretion to require a requester to pay the charges due for a previous FOIA request before it will be required to honor a subsequent FOIA request by the same requester.

During the public comment portion of the meeting, representatives of the Virginia Press Association and the Virginia Municipal League remarked that they worked with the subcommittee and had agreed with the resolution discussed by the subcommittee. The Press Association raised concerns that, as drafted, the subcommittee recommendation may result in an unintended consequence. An example of this was given in the context of FOIA and separate requests made by two or more reporters of the same newspaper to the same public body. As drafted, the second reporter’s FOIA request could be denied based on an outstanding invoice from the first reporter on the previous day. The representative of the Virginia Municipal League stated that although the draft did not specifically address the problems encountered by the City of Virginia Beach and PETA (the origin of HB 900), she would hope that a public body would remember who and who does not pay their FOIA charges, and that a public body would not use this tool as a sword.

With the consensus of the Council, Senator Houck suggested that this subcommittee meet again to address the issues raised.

Other Business

It was brought to the attention of the Council that the Virginia Department of Agriculture and Consumer Services (VDACS) is seeking to add a record exemption for the release of animal and plant diseases in the context of terrorist activity. The Council requested staff to invite a representative of VDACS to the next Council meeting to discuss the Department’s proposed exemption. Acknowledging that there will likely be more of these types of exemptions being sought, the Council offered its assistance as a forum for examination of proposed FOIA and related access legislation. With its special expertise, the Council is able to serve as a clearinghouse for the General Assembly on FOIA and related access issues, including drafting assistance.

Political Caucuses

In addition to Council staff contacting all caucuses of the General Assembly to invite their comment on the operation of caucuses, Senator Houck indicated that he contacted the leadership of the party caucuses. It was noted, however, that there appears to be little interest in this issue by the government, the media, or the citizens. No one appeared before the Council nor did the Council receive any comment on this issue. Based on the lack of response, the Council, by consensus, agreed to table this issue unless it comes to the Council’s attention at a later date.

Charges for FOIA Requests

A representative of the Virginia Coalition for Open Government suggested that the Council should assist citizens and government alike by providing more guidance on what constitutes "actual costs". It was pointed out that the manner in which fees are assessed varies from locality to locality. Although there are Council opinions on what may be charged, it was suggested that a guidance document by the Council would stem litigation on this issue. The Council directed staff to report on the alternatives for the development of educational materials on this issue at its next meeting.

Statewide FOIA Workshops and Stats on Services Rendered by Council

Staff advised the Council that the annual statewide FOIA workshops offered by the Council are scheduled for the second and third weeks in September at seven locations: Big Stone Gap, Roanoke, Harrisonburg, Loudoun County, Prince William County, Richmond, and Virginia Beach. The program for the workshops includes segements on open records under FOIA, open meetings under FOIA, the Virginia Public Records Act, email and FOIA, and the release of law-enforcement records.

Staff apprised the Council of the latest statistics on the services rendered by the Council. Since July 2000, the Council has responded to a total of 2,049 requests for opinions, both written and informal (i.e., telephone or email). Of that number, the Council has issued 77 written advisory opinions (with three additional opinions pending). Citizens continue to make the most requests for assistance, followed by state and local government officials, and media, respectively. Since the Council’s last meeting in June 2002, (i.e., in the past 44 working days) the Council has received 360 requests for opinions, both written and informal (i.e., telephone or email). Of that total, the Council has issued three written opinions (with three additional opinions pending).

The next meeting of the Council has been tentatively scheduled to coincide with the next meeting of the joint subcommittee studying access to court records (HJR 89, 2002).

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

¹The House Committee on General Laws carried over HB 900 (Purkey) and referred it to the Council for study. HB 900 would authorize any public body subject to FOIA to petition the circuit court for a protective order relieving it, in whole or in part, of its obligations to produce requested records where the request is unreasonable, not made in good faith, or motivated primarily by an intent to abuse, harass, or intimidate the public body. The bill also would allow the court to require the requester to pay the reasonable attorney’s fees incurred by the public body in obtaining the protective order.