VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

September 15, 2003, Richmond

The Freedom of Information Advisory Council began its meeting by receiving progress reports from its two subcommittees created to study (i) the Virginia Freedom of Information Act (FOIA) exclusion for the Sexually Violent Predators Commitment Review Committee and (ii) a possible reorganization of § 2.2-3705 of the Code of Virginia (the current FOIA record exemption section).

Civil Commitment of Sexually Violent Predators

The civil commitment subcommittee reported that it examined the new exclusion found at subdivision A 5 of § 2.2-3703, which removes the Sexually Violent Predators Commitment Review Committee (the "Committee") from the requirements of FOIA. With a few exceptions, most public bodies are not wholly excluded from the requirements of FOIA. Instead, most public bodies must exercise narrowly tailored records and meetings exemptions to withhold records and to close meetings, following specific procedures in FOIA.

Records and meetings of government agencies are presumed to be open, and an agency must justify which records and meetings require protection from disclosure. The public has an interest and a concern in following the actions of the Committee, and the Committee should have to follow the same procedures as other public bodies for exempting records and meetings.

To better understand what kind of information would need to be protected by exemptions, subcommittee members discussed with Department of Corrections representatives the process by which a sexually violent predator is reviewed by the Committee. The Committee consists of seven members. A risk assessment is performed on inmates within 10 months of release who have been convicted of one of four specified sexually violent crimes. Those inmates who receive a certain score on the risk assessment are presented to the Committee for review. The Department of Corrections contracts with an outside evaluator to perform in-depth mental health assessment as to whether a particular individual is likely to become a repeat offender. Based on this assessment, the Committee makes a recommendation to the Office of the Attorney General to release the individual, civilly commit the individual, or to establish a conditional release. The Attorney General reviews the recommendation and decides how to proceed. If the Attorney General decides to pursue a conditional release or civil commitment, the case is filed with the court system. At that point, the court case becomes a matter of public record.

It was recognized that the in-depth mental health assessment should be protected from public disclosure. However, once a recommendation is made to the Attorney General, the names of the individuals identified as potential sexual predators and the basis for the recommendation made should become public. The Office of the Attorney General had indicated that it was essential to protect victim-identifying information from public disclosure. The subcommittee members and meeting participants generally concurred that these two elements should be protected by an exemption.

Representatives from the Department of Corrections indicated that there was some concern over the votes of the members of the Committee being released. The concern was based on both the safety of the members and concern that the Committee members may tend to vote in favor of commitment to avoid public backlash. Other meeting participants, however, noted that oversight of the Committee would be limited if the votes were not disclosed, pointing out that juries decide cases every day and their actions are subject to public scrutiny.

The subcommittee voted 2-0 to recommend a draft to the FOIA Council that would protect the mental health assessments of individuals subject to the Committee's review and other records identifying their victims from public disclosure, and to protect discussions of those records in a public meeting.

Reorganization of § 2.2-3705

The subcommittee studying the possible reorganization of the records exemptions found at § 2.2-3705 met on August 27, 2003. Subcommittee members Tom Moncure and Ralph L. "Bill" Axselle were present at the meeting. Council members John Edward and Roger Wiley were also present, along with representatives of the media and local government. The focus of the subcommittee was to determine whether a reorganization of § 2.2-3705 would be advisable to reduce the size of bills before the General Assembly that contain a FOIA exemption and generally to make the exemption section more user friendly.

On its own initiative, staff met with interested parties to receive comment and discuss possible categories to use to reorganize § 2.2-3705. A consensus draft was prepared that incorporated the suggestions made and was presented to the subcommittee at its first meeting. The subcommittee, satisfied that the draft reflected the consensus of divergent interests, voted 2-0 to accept the draft and to present it to the FOIA Council for deliberation. The draft would repeal § 2.2-3705 and create eight new sections grouping the exemptions by general subject area as follows:

§ 2.2-3705.1. Exclusions to application of chapter; exclusions of general application to public bodies. (written legal advice, contract negotiations, etc. shared by all public bodies)

§ 2.2-3705.2. Exclusions to application of chapter; public safety records. (terrorism, school safety audits, victims of crime, etc.)

§ 2.2-3705.3. Exclusions to application of chapter; administrative investigations records. (investigations related to license applications, fraud, waste and abuse, risk management claims, EEOC, etc.)

§ 2.2-3705.4. Exclusions to application of chapter; educational records and certain records of educational institutions. (scholastic records, records of teaching hospitals, etc.)

§ 2.2-3705.5. Exclusions to application of chapter; health and social services records. (medical and mental health records, records related to recipients of social services, etc.)

§ 2.2-3705.6. Exclusions to application of chapter; proprietary records and trade secrets. (self-explanatory)

§ 2.2-3705.7. Exclusions to application of chapter; records of specific public bodies and certain other limited exemptions.

§ 2.2-3705.8. Limitation on record exclusions. (salary information about public employees is open and access to consultants' reports).

After review of both drafts, the Council, by consensus, decided to keep the drafts as agenda items for its next meeting to allow further reflection by Council members and additional public comment. It was noted that the proposed reorganization of § 2.2-3705 had been presented to the Code Commission at its August meeting. The Council also directed staff to publicize the drafts, including posting them on the Council's website with an invitation to interested parties to submit comment.

E-Mail and the Freedom of Information Act

Under the next heading on the agenda, E-Mail and the Freedom of Information Act; Using Technology and Complying with the Law, the Council heard from Robert F. Nawrocki, Director, Records Management and Imaging Services Division, Library of Virginia. Mr. Nawrocki educated the Council on the general requirements of the Virginia Public Records Act and the handling of e-mail, specifically. He noted that email is no more than an electronic envelope. It is the content of the email that controls whether it must be retained and not the medium in which it is transmitted. Email creates a new burden on government for record keeping and accordingly government must adapt to this now-prevalent mode of communication. In the 1970s, email began as an analog to the phone message, but today it is much more. In managing e-mail, Mr. Nawrocki suggested that government think globally, but act locally. He suggested that e-mails fitting the definition of a public record under the Virginia Public Records Act be stored locally by the sender in an electronic folder appropriately named or, alternatively, cc'd to the administrator of the public body for retention. In this way, the disclosure requirements of FOIA can be easily managed.

Concern was expressed by members of the FOIA Council that the record retention requirements on local government officials are particularly onerous in light of the fact that local elected officials serve their communities part time, receive a small stipend, and use their personal resources (home computers, etc.) to conduct public business. The convergence of FOIA and the Virginia Public Records Act has created a significant burden on local officials who are expected to be record managers in addition to their other public duties. It was felt that this burden would have a chilling effect on well-intentioned citizens who are trying to help out their communities by seeking elective office. On the other hand, it was noted that record keeping is part of governing and that record-keeping requirements truly operate for the benefit of the citizen. In response, the Librarian of Virginia stated that his staff is aware that the Virginia Public Records Act, enacted more than 30 years ago, is due for reexamination, especially in light of issues raised by electronic communications. He indicated that the subcommittee created pursuant to HJR 159 (2003) has been asked to make a recommendation concerning a review of the Virginia Public Records Act and suggested that this subcommittee would be an appropriate place for those wishing to comment.

Status of Fredericksburg E-Mail Case

Staff briefed theCouncil on the status of Fredericksburg email case. The Supreme Court of Virginia granted an appeal to the defendants (Beck v. Shelton, Supreme Court Case Number 030723). Defendants appealed the circuit court's decision that the use of email to reach a consensus among three or more members of a public body constituted a meeting under FOIA. The plaintiffs in the case have also cross-appealed the decision that certain other uses of email by three or more members of a public body was not a meeting under FOIA. All of the appeal briefs, including the response and reply, are due by the end of October. At that point, the court will set a date to hear oral arguments of the case. The arguments will not likely take place until early 2004, with a decision not likely until spring of 2004.

Public Comment

The Council heard from the Superintendent of Recreation for Frederick County Parks and Recreation concerning the potential danger to children that could result from record requests made to the department under FOIA. Specifically, their records contain personal information about children enrolled in their camp and sports programs. Such personal information includes a child's name, address, birth date, phone number, parent's name and place of work, medical conditions if any, and custodial arrangements. It was noted that on prior advice from the Council the department could not properly invoke the scholastic record exemption because it is not an educational institution. The Council agreed to look into the issues raised at its next meeting.

Other Business

Council member David Anderson stated that he was aware that the Chief Medical Examiner was pursuing the amendment of the Code of Virginia, including FOIA, to limit access to records of that office. The Council directed staff to contact the medical examiner and report back to the Council at its next meeting.

Of Note

Staff advised the Council that it projected that the 2003 FOIA Workshops being held in September would reach approximately 650 registrants statewide. Additionally, staff presented the latest statistics of the services rendered by Council. Since its meeting in June through September 12, 2003, the Council has answered 303 inquiries, including 10 written opinions. Three written opinions were provided to government and seven to citizens. Staff provided 148 informal responses (via phone or email) to government, 78 to citizens and 67 to media.

The next meeting of the Council has been set for Monday, December 1, 2003, at 2:00 p.m. in Richmond.

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

¹Attended by members Houck, Anderson, Axselle, Bencoach, Bryan, Edwards, Hopkins, Moncure, Wiley, and Yelich.

²Comprised of FOIA Council members Tom Moncure and John Edwards.