VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

November 29, 2001, Richmond

The Freedom of Information Advisory Council held its seventh meeting since its creation in July 2000. The meeting focused on progress reports from the study work groups and consideration of possible legislative recommendations for the 2002 Session of the General Assembly.

Connell v. Kersey

Roger Wiley, a member of the FOIA Council, reported on the progress of the work group established to discuss the issues raised by the Connell v. Kersey case. The work group met three times to discuss a statutory response to the Connell v. Kersey case. Areas of consensus among the work group, excluding representatives of the attorneys for the Commonwealth, included a recommendation that (i) the term “public official” be eliminated from FOIA to alleviate any ambiguity, (ii) the definition of public body be amended to clarify that all constitutional officers are subject to those portions of FOIA dealing with record production, and (iii) the criminal records section be amended to include an additional exemption for records relating to specific pending cases or ongoing investigations or prosecutions handled by attorneys for the Commonwealth.

At the last work group meeting, the Virginia Association of Commonwealth’s Attorneys (VACA) voiced its objection to inclusion of attorneys for the Commonwealth within the definition of a public body. Commonwealth’s attorneys argued that they should not be included because of an expected administrative burden on their offices in fulfilling anticipated requests under FOIA. A total exemption from FOIA, similar to that of the Virginia Parole Board, was requested on behalf of the Commonwealth’s attorneys.

The council voted that a subcommittee of the council be constituted to attempt to resolve the issues still in dispute related to the Connell v. Kersey case. Members of the subcommittee appointed by the council chairman were asked to work with representatives of the Commonwealth’s attorneys and council staff to make recommendations to the council at its next meeting.

Scientific Research

Staff reported on the progress of the work group formed to examine scientific research as a result of HB 1597 (2001). Representatives from state universities and the Department of General Services were contacted and expressed their opposition to the bill because most research that would be covered by the bill is confidential by contract or is proprietary information. The vice-provost for research at Virginia Tech agreed to write a letter to the FOIA Council summarizing this viewpoint on behalf of all Virginia institutions of higher education. The council is awaiting receipt of this letter as well a written response by the Department of General Services.

Public Comment

During the public comment portion of the meeting, the council heard from the electronic communications coordinator of the City of Roanoke concerning a proposed amendment to FOIA to restrict the release of email addresses of those citizens who furnish their email addresses to the City for its “My Roanoke” service, which allows citizens to subscribe to the types of information they would like to receive by e-mail, pager, or cell phone. The city was concerned that the risk of having to make citizens’ email addresses public would have a chilling effect on its ability to market this open government service and a general perception that it is not a fair deal for citizens to give up their email privacy in exchange for receiving meeting notices. After discussion of how the amended language should be crafted in light of comment received about whether such an exemption was needed, the council voted to recommend that FOIA be amended to include a record exemption for individual email addresses furnished to a public body for the purpose of receiving electronic mail from the public body, provided that the electronic mail recipient has requested that the information not be released.

Also during the public comment portion of the meeting, the council heard from a representive of both the Virginia Municipal League and the Virginia Association of Counties concerning a legislative proposal to help local governments deal with the FOIA issues surrounding terrorism threats. The specific language for this proposal was submitted for the council’s review. Anticipating that the 2002 Session of the General Assembly would deal with numerous pieces of legislation dealing with terrorism in light of the September 11 attacks, the council decided to form a subcommittee to look at this issue, taking into account the needs of both state and local governments. The council chairman directed members of the subcommittee to begin a study of this issue and make recommendations to the council at its next meeting.

Electoral Boards

The council reviewed a proposed amendment to FOIA under consideration by the Voting Registration and Election Day Processes Task Force of the Joint Subcommittee on Virginia’s Election Process and Voting Technologies. The recommendation was an attempt to rectify some unique problems in complying with FOIA meeting requirements experienced by the State Board of Elections and local electoral boards, which have only three members. The council expressed concern over the proposal, pointing to their awareness of the operational strains of electoral boards, especially on election day. However, the council questioned whether FOIA should be restricted to alleviate these operational strains. The concern of the council was expressed to the task force.

Sunset Provision

The council discussed the sunset provision contained in its enabling legislation that provides that the council will cease to exist on July 1, 2002. The council reviewed the most recent statistical summaries of the services provided by it and found that in its first 16 months of operation, more than 840 inquiries, including requests for 71 written opinions, had been answered by council staff. Given the volume of inquiries for advisory opinions, coupled with the frequency of requests for FOIA training, the council recommended legislation for the 2002 Session to remove the sunset provision, thereby making the council permanent.

Before adjourning, the council set its next meeting for Monday, January 7, 2002, at 10:00 a.m. in House Room D of the General Assembly Building.

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