VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

December 1, 2003, Richmond

The Freedom of Information Advisory Council (the Council)¹ began its meeting by commending outgoing member Rosanna L. Bencoach for her service to the Council. The Council also welcomed David H Hallock, Jr. as the new member succeeding Ms. Bencoach.

The Council completed its final review of the legislative recommendations made by its subcommittees concerning the Freedom of Information Act (FOIA) exemption for records relating to the civil commitment of sexually violent predators² and the reorganization of § 2.2-3705³. The Council had previously considered these drafts at its meeting in September 2003, but wanted to allow additional time to receive comment from interested parties. Although the drafts were widely publicized, as directed by the Council, staff reported that no further comments or changes to the drafts had been received. The Council unanimously adopted both drafts and will recommend them to the 2004 Session of the General Assembly. With regard to the reorganization of § 2.2-3705, the Council directed staff to include in its 2003 annual report, that the reorganization of § 2.2-3705 was purely a technical exercise and that no substantive changes to the current law were made.

Legislative Preview

As the forum for receiving and/or reviewing requests for legislation impacting FOIA, the Council heard from several parties. A summary of each presentation follows:

· Frederick County Department of Parks and Recreation; protection of records about children enrolled in their camp and sports programs. It was noted that there are approximately 550 children enrolled in the camp and sports programs offered by Frederick County. As a matter of registration, the County routinely collects a minimum of information on each child, including the name, home address and telephone number, date of birth, social security number, and any disabilities. In addition, the county advised that an additional 300 children are enrolled in after school programs through the local department of social services, which in addition to the information collected above, includes a listing of the child's medications, allergies, and the money a parent pays for a child's participation.

· Virginia State Bar (VSB); availability of VSB membership lists. This issue was the subject of the Council's advisory opinion that VSB membership lists were subject to FOIA's mandatory disclosure requirements. The VSB proposed language to "overturn" the Council's opinion and make VSB membership lists exempt from the mandatory disclosure provisions of FOIA.

· City of Richmond/City of Norfolk; protection of investigations conducted by local auditors. This request seeks to expand current record exemption # 43 of 2.2-3705 to include investigations conducted by local auditors. Currently, #43 provides protection for investigations of the Auditor of Public Accounts, JLARC, the State Internal Auditor and certain committees created by Fairfax County.

· Virginia Information Technology Agency (VITA); update of technology terms in FOIA. After Council staff conducted FOIA training for senior staff at VITA, they expressed concern that many of the technology terms used in FOIA, whether in definitions or exemptions are obsolete. VITA suggested that the Council, with the assistance of VITA, study this issue and make recommendations for updating the nomenclature.

As to the protection of children's records maintained by local departments of parks and recreation, it was noted that these records were similar to scholastic records of children in school, even though they are not maintained by an educational institution as required by FOIA. The consensus of the Council was that should legislation be introduced, it should not be limited to the specifically named localities. Instead, any such exemption should be universally applied but narrowly tailored to protect only those records that are sensitive. A suggestion was made that Virginia needs a coherent, consistent policy as it relates to records of children, and perhaps in the future, the Council could examine this issue further.

Discussion about the release of VSB membership lists centered on whether any other regulatory agency limits the distribution of the names and addresses of its regulants. The representative of the VSB indicated that to her knowledge, only the State Corporation Commission limited the distribution of a listing of licensed insurance agents. The concern of the VSB was the privacy of its members that were not actively engaged in the practice of law. It was noted that the name, address, and telephone number of individual members is always released if requested. However, the entire membership lists was routinely sold to persons offering continuing legal education and certain other requesters. The Council took no position of the legislative proposal of the VSB.

As to the protection of records of local internal auditors, the Council again expressed its belief that if legislation is introduced, it should apply all localities and not just individually named localities. It was noted that the public policy has already been articulated in FOIA by describing the records at the state level that may be exempted and also limiting protection of these records to ongoing investigations. It was brought to the Council's attention that there are a number of localities, usually cities, that have internal auditors and usually their responsibilities are set out in the respective charters.

The Council declined VITA's suggestion that it create a subcommittee to study the issue of obsolete technology nomenclature in FOIA. Although interested in pursuing the issue, the Council discussed the appropriate forum for what it perceived to be a technical issue. The consensus of the Council was for Council staff to convene a task force, similar to those convened by the Virginia Code Commission, to bring interested parties together to resolve the issue. Council staff would act as the facilitator/moderator of the task force.

An additional legislative issue was raised at the meeting concerning the need for an exemption for the list of cellular phones numbers of local public safety employees. This proposal was a recommendation of the Virginia Association of Counties.

Other Business

As directed by the Council at its last meeting, staff advised the Council on the proposed legislation being considered by the chief medical examiner. Staff reported that the office of the chief medical examiner had been contacted and had reported that no legislation would be forthcoming from that office. Initially, the medical examiner had sought clarification about access to records in its possession from third parties, including law-enforcement agencies and others.

A draft of the Council's 2003 annual report was distributed. By law, the Council is required to report to the Governor and the General Assembly on its activities during the past year. At the direction of the chair, council members were asked to submit their changes or suggestions to Council staff within the next two weeks.

Next Meeting

The next meeting of the Council has been set for Monday, March 29, 2004, at 2:00 p.m. in Richmond. The Council indicated that at this meeting it will set all of its meetings in 2004.

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

¹ All members of the Council were in attendance, except Mssrs. Axselle and Hopkins, and Delegate S. C. Jones.
² The essence of the proposed draft would protect the mental health assessments of individuals subject to the Sexually Violent Predators Civil Commitment Committee's review and other records identifying their victims from public disclosure, and to protect discussions of those records in a public meeting. The removal of the Civil Commitment Review Committee from the provisions of FOIA, which was enacted in 2003, would be replaced with the proposed amendments.
³ Generally, the proposed draft would repeal § 2.2-3705, and create seven new sections grouping the exemptions by general subject area. The proposed groupings would include exemptions of general application, exemptions relating to public safety, exemptions relating to administrative investigations, exemptions relating to educational records and educational institutions, exemptions relating to health and social services, exemptions relating to proprietary records and trade secrets, and exemptions applicable to specific public bodies.