VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

August 31, 2005, Richmond

The Virginia Freedom of Information Advisory Council (the Council) held its third quarterly meeting¹ of 2005. Among other things, the Council received progress reports from its two subcommittees, reviewed draft FOIA legislation and newly created educational material on FOIA charges, and received a demonstration by VDOT on its "FOIA Tracker" system.

Subcommittee Reports

1. The Electronic Meetings Subcommittee met on July 13, 2005 and reported that as part of its deliberations, it had discussed the legislative history of § 2.2-3708 (electronic meeting provisions) and noted that when the law was initially enacted in 1984, it prohibited any public body from conducting electronic meetings. The next significant amendment to this section came in 1992 when state public bodies were granted the permanent authority to conduct electronic meetings. In 1996, § 2.2-3708 was amended to require that a quorum of a state public body be assembled at one central location as a prerequisite for conducting electronic meetings. Finally, in 2005, this section was amended to significantly relax the procedural requirements for conducting electronic meetings by state public bodies. Chairman Edwards advised that the subcommittee voted not to recommend HB 2760 (Reese) as it related to local governing bodies and school boards in light of the significant relaxation of the procedural requirements made by the 2005 Session of the General Assembly to § 2.2-3708.

The subcommittee did, however, discuss the application of § 2.2-3708 to local regional public bodies. The subcommittee had previously been requested by the Potomac and Rappahannock Transportation Commission (the Commission) to authorize them to conduct a pilot project whereby the Commission could meet electronically and report its experiences. The Commission is comprised of public officials representing several jurisdictions which required at least 90 minutes of travel one-way (assuming no traffic) to meetings in Manassas. The long commute to meetings also adversely impacts citizens wishing to attend. The representative of the Commission renewed the request for a pilot project by the Commission under specified conditions as deemed appropriate by the Council and the General Assembly to increase Commission member participation and that of the interested citizens. In response, the Virginia Press Association (VPA) and the Virginia Coalition for Open Government (VCOG) stated that, although they had not considered a pilot project specifically, a compelling need had not been demonstrated to further expand authorization for the conduct of electronic meetings. Noting further that because of the extensive rewrite of the electronic meetings law in 2005, the VPA and VCOG were opposed to further relaxation of the electronic meeting rules at this time.

A representative of the Piedmont Workforce Network (the Network) advised the subcommittee that the Network, required under the federal Workforce Investment Act, was comprised of a board of over 50 members, representing 11 jurisdictions. He advised that for some members, it is a two-hour commute one-way. He reported that due to the large number of members, the Network has trouble with attendance generally and also has trouble achieving a quorum for the conduct of its business. He noted that the ability to conduct electronic meetings would assist in the work of the Network.

A representative of the Virginia Association of Counties (VACO) advised the subcommittee that with shrinking budgets, VACO is encouraging regional cooperation. Authority for conducting electronic meetings would enhance regional cooperation and allow affected citizens to more easily monitor the work of regional groups.

Chairman Edwards stated that interest by local and regional public bodies in conducting meetings by electronic communication means would likely continue and at some future date, the Council would have to revisit the issue. He suggested, however, that for the present, the better course is to live with the 2005 changes to the law and monitor how it works.

Based on its discussion and the public comment received, the subcommittee voted unanimously to recommend to the Council that expanding the authority for the conduct of electronic meetings to regional public bodies was premature at this time in light of the significant relaxation of the procedural rules for electronic meetings made in 2005. Further, the subcommittee would recommend that the issue be revisited next year after some experience with the new rules as it was not insensitive to the needs of regional governments. The subcommittee recommended that in the spring of 2006 a subcommittee be appointed to review the issue of electronic meetings and regional public bodies. Mr. Edwards made a motion that the Council continue to monitor the use of electronic meeting by state public bodies and reconvene a subcommittee in spring 2006 to examine the issue of authorizing the conduct electronic meetings by regional public bodies. The motion was adopted unanimously.

2. Bill Axselle, chair of the PPEA Subcommittee, reported that PPEA Subcommittee met on August 26, 2005 to continue deliberating on issues about public access to procurement records under the PPEA/PPTA². Mr. Axselle noted that with the resignation of Council and PPEA Subcommittee member David Hallock, the subcommittee had only two remaining members and requested the appointment of additional members to the subcommittee. Council members Houck and Wiley volunteered to serve on the PPEA Subcommittee. Mr. Axselle reported that the PPEA Subcommittee has held three meetings and was making progress, although it had no firm recommendations to make at this time. He reiterated the guiding principle of the subcommittee is to find the balance to facilitate competition while ensuring the public confidence in the procurement decisions of government, especially when expending substantial public funds. He identified several points of consensus reached, including (i) that trade secrets, financial statements of privately held companies, balance sheets, etc. should always be confidential; (ii) that conceptual proposals received by a public body should be posted on the websites of the respective public bodies; (iii) that FOIA should be amended to formalize the process for requesting and approval of confidential proprietary records in order for them to be protected; (iv) that a public comment period on proposals should be established that may include a public hearing in the discretion of the public body; and (v) that any recommendations of the subcommittee concerning disclosure of proposals should apply to both interim and comprehensive agreements under the PPEA. Mr. Axselle advised that staff will be preparing drafts on the points of consensus for review and comment at next meeting of the subcommittee.

Mr. Axselle identified the remaining issues to be considered by the subcommittee, including (i) the need to define confidential proprietary information; (ii) whether confidential proprietary information should be accessible to the public and if so, when; (iii) whether the VPPA³, PPEA and PPTA (and not just FOIA) should be amended to require a more formalized request for protection of confidential proprietary information submitted by a business and a requirement for the public entity to formally declare what will be considered confidential proprietary information and therefore protected from disclosure.

Other Business

The Council reviewed draft legislation to require public bodies to advise a requester when a requested record does not exist. As drafted, the bill adds a fifth response to the list of responses a public body must make in response to a request for records under FOIA. Currently, the responses are (i) the records will be provided, (ii) the records will be entirely withheld, (iii) the records will be provided in part and withheld in part, and (iv) the public body needs more time to provide the records or to determine whether they exist. The fifth response required by the bill is for instances where the requested records cannot be provided because the public body is not the custodian of the requested records, the requested records do not exist, or such records cannot be found after diligent search. The public body is required to respond in writing and certify that (i) it is not the custodian of the records and is not in possession of the records, (ii) the requested records do not exist, or (iii) the requested records cannot be found after diligent search. The Council deferred action on the draft until its next meeting to allow more time for review and comment by Council members and other interested parties.

The Council next reviewed a proposed guidance document on allowable charges for record production under FOIA. Although public bodies have the authority to assess charges for the production of records under FOIA, there is still considerable misunderstanding among public bodies and citizens alike on this issue. This much-needed guidance document hopefully will clarify rights and responsibilities, which should lead to enhanced compliance with the FOIA charging provisions. The guidance document will be added to the Council's already broad array of educational materials and will be posted on its website.

Staff presented its report chronicling Mr. Lee Albright's efforts to obtain records from the Virginia Department of Game and Inland Fisheries (VDGIF) and, ultimately, Mr. Albright's FOIA suits against VDGIF. Staff advised that Mr. Albright's initial dispute with VDGIF concerned a request for salary records made in October, 2003. An advisory opinion regarding this dispute was issued in March, 2004. After several months of further correspondence between the parties, Mr. Albright sued VDGIF. An out-of-court settlement was reached resolving this dispute in August, 2004.

The second dispute concerned a request made in March, 2004, for meeting minutes of the Board of VDGIF. An advisory opinion regarding this second dispute was issued in December, 2004. This dispute was never resolved, but Mr. Albright let the matter drop after the resignation of the Chairman of the Board of VDGIF in March, 2005.

The third dispute arose after three records requests made in December, 2004, in which Mr. Albright asked for separate advance estimates. While Mr. Albright did receive the desired estimates, he only did so after filing suit, and this dispute was ultimately resolved by a court decision in Mr. Albright's favor in June, 2005.

The fourth dispute arose from a request initially made in October, 2004. While court decisions in Mr. Albright's favor regarding this fourth dispute were issued in June, 2005, and August, 2005, it appears that further litigation may be on-going at this time.

Additionally, it appears that the records generated from Mr. Albright's FOIA requests may have been used to support the State Internal Auditor's investigation of VDGIF earlier this year. While the allegations in the SIA Report raise concerns in regard to FOIA as well as other areas, it appears that significant changes have occurred and continue to be made within VDGIF. Both the Chairman of the Board and the Director of VDGIF have resigned from their positions. The Chairman resigned in March, 2005; the Director resigned in May, 2005. VDGIF now has a new acting Director, Col. Gerald Massengill, formerly of the Virginia State Police.⁴ At least one other Board member resigned in June, 2005. In addition, it appears that some of the higher-ranking employees named in the SIA Report have also resigned, and news reports have described other organizational changes within VDGIF. News reports have also indicated that a criminal investigation by the Virginia State Police is ongoing into the matters described in the SIA Report.

It appears that dozens of articles, editorials, and commentaries have been published about Mr. Albright's encounters with VDGIF and the SIA Report in various media. The three articles included herein are representative of the reporting on Mr. Albright's experiences in seeking documents from VDGIF through FOIA, and on current events at VDGIF that have resulted from the SIA Report.⁵

The members of the Council shared Mr. Albright's concern that citizens should not have to endure what Mr. Albright has experienced, especially in light of the mandatory disclosure requirements of FOIA. The Council queried whether Mr. Albright's experience was typical. Mr. Albright indicated that he believed the experience to be an aberration based on the fact that he has made numerous FOIA requests to other units of government who fully complied with the law in providing documents. The Council agreed that at its next meeting it would examine whether changes in the remedies afforded by FOIA should be made.

The Council discussed the need to begin planning for "Sunshine Week" in March 2006. The Council expressed an interest in taking an active part in "Sunshine Week" in 2006 and will begin consideration of the method and nature of its involvement. Ginger Stanley of the Virginia Press Association offered to work with Council staff to develop recommendations for the Council's participation in Sunshine Week.

Senator Houck brought to the Council's attention an editorial from the Staunton News Leader dated August 28, 2005 on the Virginia Information Technologies Agency (VITA) and the perceived secrecy with which VITA is overhauling the IT systems of state government. Senator Houck stated that, to his understanding, VITA is not operating outside of the law, but its actions raise significant policy issues regarding public procurement. Senator Houck requested staff to invite VITA to the next Council meeting to discuss their actions in this matter and explain the need for such secrecy.

Of Note

Frankie R. Giles, Assistant Policy Director, VDOT, demonstrated the VDOT "FOIA Tracker" system. She indicated that VDOT handles between 350 and 400 FOIA requests per year. She explained that with 9,300 VDOT employees and nine districts offices throughout Virginia, VDOT, on its own initiative, developed a centralized system to track and respond to FOIA requests. Benefits already derived from this new system include greater accountability, consistency, and compliance with FOIA; better response for the citizens requesting VDOT records; and real time data analysis for VDOT managers. She reported that development of the "FOIA Tracker" system cost approximately $100,000 and involved four VDOT employees who spent two months to develop the system. The Council commended VDOT for its initiative in the development of the "FOIA Tracker" system and its willingness to investigate ways in which to share its approach with other agencies. In addition, VDOT was commended for building an institutional culture that sends a positive message to its employees about the importance of FOIA.

Staff reported that for the period June 1, 2005 through August 31, 2005, it had received a total of 424 inquiries. Of the 424 inquiries, five had been requests for formal written opinions and 419 informal inquiries coming from telephone and emails. Citizens accounted for 164 of the informal inquiries, the government for 204 inquiries, and the media for 51 inquiries. Of the formal opinions, the breakdown was three requests by citizens and two by government.

Staff also reported that preparations for the 2005 FOIA Workshops in October in Abingdon, Harrisonburg, Richmond, Norfolk, and Fairfax were nearing completion.

Public Comment

Frosty Landon of the Virginia Coalition for Open Government (VCOG) stated that although Mr. Albright's experience with VGIF was an aberration, it was not unique. Mr. Landon indicated that it is significant that Mr. Albright went to the Council first for assistance and not to courts. He noted that when the Council was created in 2000, Delegate Woodrum stated on the House floor that the Council would provide informal mediation, although that is not specified in the Council's enabling statute. Mr. Landon opined that without favorable advisory opinions from the Council, Mr. Albright would not have pursued his FOIA remedies through the court system. Mr. Landon suggested that the Council consider recommending specific statutory authority for informal mediation to resolve FOIA disputes.

The next meeting of the Council has been scheduled for Thursday, November 17, 2005 at 9:00 a.m. in House Room D of the General Assembly Building in Richmond.

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

¹All Council members were in attendance.
²The Public-Private Education Facilities and Infrastructure Act of 2002 (§ 56-575.1 et seq.) and the Public-Private Transportation Act of 1995 (§ 56-556 et seq.).
³The Virginia Public Procurement Act (§ 2.2-4300 et seq.).
⁴Mr. Albright has indicated that Col. Massengill has been very supportive and helpful regarding Mr. Albright's FOIA issues with VDGIF, describing his current interaction with Col. Massengill as a "180 degree turnaround" from the adversarial encounters he had with former VDGIF staff and officials.
⁵Excerpted from a memorandum dated August 31, 2005 from Alan Gernhardt, Council staff attorney, to the members of the Council.