VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

September 16, 2004, Richmond

The Freedom of Information Advisory Council¹ (the Council) conducted its first teleconferenced meeting in accordance with § 2.2-3708 of the Freedom of Information Act (FOIA). After the introduction of the members both physically present and located at a remote site in Roanoke, Senator Houck announced the recent appointment of Craig Fifer to fill the vacancy created by the expiration of David Anderson's term. Mr. Fifer is the E-Government Manager for the City of Alexandria and was unable to attend this meeting.

Report on work of Subcommittees

The Council received progress reports from its subcommittees and workgroups. Staff reported that the Electronic Meetings and Notice Subcommittee met on July 7, 2004 and the meeting was held pursuant to the audio/visual meeting provisions of Chapter 704 of the Acts of Assembly of 1997 (as amended) ("the Pilot Project"). Subcommittee member David Hallock attended the meeting at the Richmond location, and subcommittee member Wat Hopkins participated in the meeting remotely from Virginia Tech via an audio/visual connection.¹ Nine members of the public attended the meeting at the Richmond location, and one member of the public attended the meeting at the remote location.

The subcommittee reviewed a draft legislative proposal that included electronic meeting and notice changes discussed at the first meeting. The draft would amend § 2.2-3707 of the Code of Virginia so as to require state public bodies in the executive branch of government to post notice of their meetings on the Internet. The subcommittee discussed whether it might be better to require all state public bodies, which would include public bodies in the legislative and judicial branch of government, to post notice on the Internet. Both subcommittee members present voted to recommend that the Internet notice be required of all public bodies, but directed staff to research whether such a requirement would have unintended consequences for the judicial branch.

The subcommittee next addressed proposed changes to § 2.2-3708 relating to electronic meetings. The draft would have shortened the notice required for electronic meetings from 30 days to seven days, to parallel the notice required by the Pilot Project. A representative of Senate Clerk's office stated that seven days was a good compromise, while representatives of the press and access groups expressed concern that seven days was not enough notice for electronic meetings. Both subcommittee members present voted to recommend that the notice for electronic meetings be changed to seven working days, as opposed to the calendar days presented in the draft.

Other issues were also addressed in the draft, such as eliminating the limitation that a public body may only hold 25 percent of its meetings each year via electronic means. This led to a discussion amongst the subcommittee members and the members of the public as to whether electronic meetings were a positive thing for which access should be made easier or whether more restrictive provisions concerning electronic meetings should be retained. It was noted that the Pilot Program, which contains less restrictive elements, was set to sunset in July, 2005 and must be addressed by the 2005 Session of the General Assembly if it is to continue. It was also noted the Joint Commission on Technology and Science (JCOTS) had indicated that it would review the electronic meeting provisions and make recommendations concerning the Pilot Project. In light of JCOTS's involvement, the subcommittee decided that it would like to meet with representatives of JCOTS before deciding what further changes it would recommend concerning electronic meetings, so as to hopefully reach an agreement with JCOTS and not present conflicting legislation at the 2005 Session.

Finally, the issue of making electronic public access more widely available through the use of public-access dial-in numbers to listen to meetings was discussed at the first meeting. The subcommittee requested that a representative from the House Clerks Office report on the feasibility and costs of this idea at the next full FOIA Council meeting.

GIS Subcommittee

The GIS subcommittee² began its meeting by recapping the discussions from its first meeting for the benefit of those interested parties who were not in attendance on June 9, 2004. Senate Bill 182 (Blevins, 2004), which was referred to the FOIA Council for study by the 2004 General Assembly, was introduced at the request of the City of Virginia Beach to protect GIS information from release under FOIA. At its first meeting, the GIS subcommittee agreed that SB 182 did not achieve the objectives of the city and the subcommittee would not recommend the bill in its current form. However, the issues raised were significant enough for the subcommittee to continue to meet. At this second meeting, the GIS subcommittee focused on the protection of (i) information given to local governing bodies by private utilities and (ii) the economic value of GIS generally. Mr. Wiley stated that the cost of creating and maintaining GIS is very high and the government ought to be able to recover some of these costs. He pointed to New York law that distinguishes between individual use and commercial use of GIS.

Mr. Moncure pointed out that GIS records are public records by definition, and he was therefore opposed to a complete exemption of GIS information from FOIA. He did, however, agree that there might be a middle ground to address the release of GIS information, such as setting fees for release of GIS. Mr. Moncure stated that he has trouble with identifying back users for the basis of release, as motive under FOIA is irrelevant to the request. Mr. Moncure suggested that the language in the technology trust fund found at § 17.1-276³ be examined to see if it could be used as a model to resolve the GIS issues. Under the technology trust fund the clerks of court have the ability to recoup some of the costs of putting certain court records on-line.

The subcommittee next discussed the issue of copyrighting GIS information. A representative of the Office of the Attorney General indicated that copyright protection is not available for protecting fact; but compilations of fact are copyrightable. He noted, however, that commercial interests want the underlying data contained in GIS that cannot be copyrighted. The only way to protect secondary commercial use of GIS is through contract between the parties; but FOIA prohibits examination into motive for the request.

The subcommittee looked at the charges for GIS currently available under FOIA. A public body may charge on a pro rata per acre basis for the cost of creating topographical maps developed by the public body, for such maps or portions thereof, which encompass a contiguous area greater than 50 acres. It was noted that the difficulty with this language is that the terms "topographic" and "pro rata" are not defined and are therefore hard to understand.

The subcommittee discussed expanding current public safety exemptions in FOIA to include GIS. However, it was noted that while there was consensus for this approach, the applicable public safety exemptions are so narrowly tailored that including GIS would not achieve the desired result. It was suggested that George Foresman, Office of Commonwealth Preparedness, be contacted for his perspective.

Because of the divergent positions, the subcommittee felt that further discussion would not yield a result. The subcommittee decided the best way to move forward was for the City of Virginia Beach and other localities to work together on developing draft language to resolve their issues for the subcommittee's and others' review. The subcommittee directed that should draft language be proposed, a copy be sent to staff at the FOIA Council so that it can be posted on the FOIA Council website. One suggestion for legislation was submitted that would exempt "GIS data furnished to the local government by nongovernmental entities in confidence or subject to a nondisclosure agreement." The subcommittee discussed this language and questioned if government received data under a confidentiality agreement, how it would then be able to use that data. The subcommittee decided that the draft language was not sufficiently refined to bring it forward to the full FOIA Council.

FOIA Technology Nomenclature Workgroup

The Technology Nomenclature Workgroup, headed by FOIA Council staff, met on September 7, 2004 to discuss whether any amendments were needed to the Freedom of Information Act (FOIA) to correct obsolete technology terms. The workgroup meeting was attended by representatives of the Virginia Information Technologies Agency (VITA), the Virginia Press Association, the Virginia Coalition for Open Government, the Fairfax County Privacy Council, and the Virginia Association of Counties, as well as other interested parties. The charge of the workgroup was limited to the definition of "public records," the provisions concerning the production of electronic records found in § 2.2-3704, and the electronic meeting provisions found in § 2.2-3708.

The representative of VITA indicated that the agency had no problems with the technology terms found in the definition of "public records" and suggested that they should remain as is found in current law because the technologies mentioned were still in use.

The workgroup briefly discussed the distinction between uses of the terms "format" and "medium" found in § 2.2-3704 and decided that no further clarification was necessary.

The representative of VITA presented a draft that would introduce the use of the term "information systems" in various sections of FOIA. However no definition for this term was provided and it was the consensus of the work group that "information systems" did not help to clarify FOIA, but instead created ambiguity. Staff noted that the only definition in law for "information systems" was found in § 2.2-3801 of the Government Data Collection and Dissemination Practices Act and applied only to that act⁴. As a result, this VITA recommendation was rejected by the workgroup. A Virginia Press Association representative cautioned the workgroup about mixing up concepts. He stated that for the purposes of security, it did not matter whether the record was in paper or electronic form. The workgroup agreed and stated that it was not within their purview to make substantive changes to FOIA exemptions related to public safety. The workgroup did note, however, that the issue of security of information systems was best addressed by a rewrite of the existing exemption found in subdivision 3 of § 2.2-3705.2⁵

Finally the workgroup discussed § 2.2-3708 which requires notice of all electronic meetings be sent to VITA. Staff indicated that from a practical perspective, it was unclear to who in VITA such notices should be sent and what, if anything, VITA did with the information. Section 2.2-3708 also requires reports from state public bodies concerning their experiences with conducting electronic meetings be filed with VITA. The VITA representative stated that VITA had no problem with receiving the notices and reports, but was unsure of the utility in providing them to the agency. It was also noted that under the pilot program for electronic meetings⁶ the FOIA Council was one of the recipients for reports required to be filed under the program's provisions. It was recommended that the FOIA Council replace VITA as the agency for receiving notice and reports of electronic meetings to be consistent with the pilot program and because electronic meetings are within the purview of the FOIA Council. The workgroup recommended to the full Council that the above-described amendment be made to § 2.2-3708.

Upon completion of the reports of the subcommittees and workgroup, the Council indicated that final action on the recommendations made by these groups would occur at the December 2, 2004 Council meeting to give Council members and interested parties further opportunity to consider the recommendations made.

The Council moved to the public comment portion of the agenda and no public comment was offered.

Other Business.

Staff then briefed the Council on the status of HB 543 (May) from the 2004 Session. As enacted, the bill prohibits filing or creating public records that contain more than the last four digits of any unique identifying number, unless such use is required by law or the record is exempt from disclosure. The bill defines unique identifying number as any alphabetic or numeric sequence, or combination thereof, that is unique and assigned to a specific natural person at that person's request and includes, but is not limited to, social security number, bank account number, credit card number, military service number and driver's license number. The bill excludes from this definition any arbitrarily assigned alphabetic or numeric sequence, or combination thereof, that is assigned to a natural person for purposes of identification, in lieu of social security numbers, and used for a single, specific government purpose. Either preparers or filers of such documents must certify that the document complies with this prohibition before the documents can be filed. The bill, as passed, contained a reenactment clause, which means that it will not go into effect unless acted on by the 2005 Session of the General Assembly. Staff identified concerns with the bill as to its practical application. Specifically, it provides that either preparers or filers of such documents must certify that the document complies with this prohibition before the documents can be filed. For example, if an individual wanted to pay for a "smart tag" with a credit card, he would be unable to print his full credit card number on the application form for the "smart tag." Another concern was that language in the bill states "which may become a public record." This phrase is confusing because by definition in FOIA, all records, regardless of physical form or characteristic, owned or prepared by or in the possession of a public body related to public business are public records and therefore subject to FOIA's mandatory disclosure requirements, absent any statutory exemption from release. It was suggested that the language of the bill should be clarified and possibly moved as an exemption in FOIA. It was noted that the Government Data Collection and Dissemination Practices Act (where the bill was placed) is essentially a data collection statute and may not be the best statutory placement for a provision that seeks to limit dissemination of social security numbers, bank account information, credit card numbers, and other individual identifying numbers.

Staff apprised the Council on the status of the Virginia Public Records Act Study (HJR 6, 2004). The HJR joint subcommittee met in August and will be examining the maintenance and retention of electronic records. The joint subcommittee is still developing its work plan.

Staff next discussed with the Council the feasibility of a Council-sponsored symposium on status of law relating to access to records of children. Staff noted that the 2004 Session of the General Assembly enacted HB 168 (Sherwood). The bill added an exemption from the mandatory disclosure requirements of FOIA for records of state or local park and recreation departments to the extent such records contain information identifying a person under the age of 18 years, where the parent or legal guardian of such person has requested in writing that such information not be disclosed. This exemption was needed because the exemption for scholastic records already in FOIA would not include park and recreation records. In light of the need for this new exemption, it occurred to Council staff that perhaps identification and examination of the various statutes relating to the accessibility of children's record might be warranted with an eye toward determining whether current rules of access and/or confidentiality are consistent from a public policy perspective. Staff suggested that, if approved by the Council, the staff-run symposium would be scheduled for spring 2005 where the various state and local agencies holding such records would make presentations about the respective records and whether release of such records is restricted. The ultimate goal of the symposium would be the compilation and publication of the various statutes relating to access to children's records. The form of the symposium would be like the functioning of other Council workgroups, with presentations and group discussions. Of course, all interested persons would be invited to attend.

The Council was reminded that the 2004 FOIA Workshops have been scheduled for the weeks of October 4 and October 11, 2004 at five statewide locations--Wytheville, Harrisonburg, Fairfax, Richmond, and Tidewater.

Staff provided the latest statistics for services rendered by Council staff since its June 9, 2004 meeting. For the period from June 9 -- Sept. 10, staff reported that it responded to 310 requests for informal opinions (phone/email) as follows: Government: 156, Media: 31, and Citizen/out of state: 123. In that same time period, staff has issued 10 written opinions as follows: Government: 4, Media: 1, and Citizen: 5.

The next meeting of the Council is scheduled for Thursday, December 2, 2004 at 2:00 p.m. in Richmond. In addition to other matters, this meeting will be the Council's annual legislative preview, where any interested person is invited to bring their proposed FOIA or other access legislation to the Council for review. As noted above, the Council will take action on the legislative recommendations made by its subcommittees and workgroups.

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

¹Members present: Houck, Axselle, Bryan, Edwards, Hallock, Miller, Moncure, Wiley, and Yelich, with Griffith and Hopkins participating via teleconference. Members absent: Fifer.
²GIS subcommittee members Tom Moncure and Roger Wiley were present. David Anderson, the third subcommittee, was not in attendance as his term on the FOIA Council had expired.
³17.1-276. Fee allowed for providing remote access to certain records. Any clerk who provides electronic access, including access through the global information system known as the Internet, to nonconfidential court records or other records pursuant to §§ 17.1-225 and 17.1-226 may charge a fee established by the clerk or by the agency of the county, city or town providing computer support to cover the operational expenses of such electronic access, including, but not limited to, computer support, maintenance, enhancements, upgrades, and replacements. The fee may be assessed for each inquiry, upon actual connect time, or as a flat rate fee. If charged, the fee shall be charged each user, paid to the clerk's office, and deposited by the clerk into a special nonreverting local fund to be used to cover the operational expenses of such electronic access. In addition, the clerk may charge users a clerk's fee not to exceed $25 per month.
⁴"Information system" means the total components and operations of a record-keeping process, including information collected or managed by means of computer networks and the global information system known as the Internet, whether automated or manual, containing personal information and the name, personal number, or other identifying particulars of a data subject.
⁵Subdivision 3 of § 2.2-3705.2 provides an exemption for " [D]ocumentation or other information that describes the design, function, operation or access control features of any security system, whether manual or automated, which is used to control access to or use of any automated data processing or telecommunications system."
⁶See 1999 Acts of Assembly, c. 704, as amended by Acts 2002, c.910; Acts 2002, c. 429; and Acts 2003 c. 346