VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

December 2, 2004, Richmond

The Freedom of Information Advisory Council (the Council) held its last quarterly meeting of 2004.¹ The purpose of the meeting was to finalize its legislative recommendations for the 2005 Session of the General Assembly, conduct its annual legislative preview (where interested parties bring their proposed FOIA or other access legislation for the Council's consideration), and receive final reports from its study subcommittees and workgroups. The Council welcomed its newest member, Craig Fifer, who filled the vacancy created by the expiration of David Anderson's term. The Council also welcomed Alan Gernhardt, Esq. to the Council's staff.

Subcommittee Reports

The Electronic Meetings and Notice Subcommittee reported that it met on November 15, 2004 to review the draft legislation considered at its previous meeting. The proposed draft would (i) require all meeting notices of state public bodies to be posted on the Internet, (ii) reduce the notice requirement for electronic communication meetings from 30 days to seven working days, and (iii) require the inclusion of a telephone number that may be used during an electronic communication meeting to notify other meeting locations of an interruption in the broadcast from any site of the meeting. It was noted that no decision had been made concerning the elimination of the 25 percent limitation of the number of electronic meetings that could be conducted annually.

The subcommittee had solicited public comment on the proposed draft. A representative of the Virginia Information Technologies Agency (VITA) stated that VITA would like to see the 25 percent limitation eliminated, but was in agreement with requiring the quorum of the public body conducting the electronic communication meeting to be physically present at one primary location.² VITA stated that boards within VITA did not use the pilot program. The Virginia Coalition for Open Government stated that the physical quorum at one primary location should be retained, seven working days' notice was adequate, and that there should be uniform rules for the conduct of electronic communication meetings. The Virginia Press Association (VPA) reminded the subcommittee that electronic communication meetings were not the rule under FOIA, but an exception to the open meeting provisions of FOIA. The procedural protections for notice, access, and preserving records of electronic communication meetings were put in place upon its enactment in 1984. The VPA noted that although technology has changed enormously since 1984, protections contained in the law should not be completely eliminated. Instead, the statutory provisions should be the subject of careful deliberation and amendment to maintain the policy objectives of FOIA. The VPA stated that the proper balance should be between ensuring maximum public participation and access on the one hand and facilitating convenience for members of a public body on the other. The VPA also called for uniform rules governing notice and access to electronic communications meetings and stated that the requirement for a physically assembled quorum at one primary location should be maintained due to its importance to open government generally. The VPA stated that its major concerns with electronic meetings are the chronic nonparticipation by a minority of members of a public body and the lack of access to a disembodied group. The VPA stated that the effect of overturning current law on electronic communications meetings is to lower the bar for expectations of our public officials. Additionally, VPA questioned whether the reporting requirements for the pilot program or the relevant provisions found in FOIA had produced ample data that could serve as a basis for the amendment of the electronic meetings provisions. Staff indicated that very few reports had been made since the inception of the pilot program in 1999.

With regard to the potential for chronic nonparticipation by members of a public body, the subcommittee noted that current law addressed the situation by limiting the number of meetings that could be conducted electronically to 25 percent. One alternative to the 25 percent limitation was to identify the members physically present as well as those attending through remote locations in the minutes of the meetings. It was noted that the identity of the members present and absent is currently required to be recorded in the minutes of any meeting. It was also suggested that a limitation on the number of times a particular public official may use electronic communications meetings may be a solution. One subcommittee noted that ours is a representative government and questioned how public policy discussions may be impacted by such a limitation.

Staff from the Joint Committee on Technology and Science (JCOTS) reported that JCOTS has a subcommittee looking at the provisions of electronic communications meetings due to the expiration of the pilot program. The goal of JCOTS was to codify the provisions of the pilot program. The difference between the positions of JCOTS and the Council subcommittee concerned the location of the quorum and the requirements for recording the meetings. Current law, including the pilot program, require that in addition to minutes, a recording be made of the electronic communications meeting and retained for a three-year period.

After considerable discussion among subcommittee members and the interested parties, the subcommittee by consensus recommended draft legislation that would (i) amend § 2.2-3707 requiring minutes of electronic communication meetings to identify each member participating remotely and those physically located at the primary location of the meeting, as well as identifying the members who monitored³ the meeting from a remote location not noticed as a meeting site, (ii) eliminate the 25 percent limitation on the number of electronic communication meetings that may be conducted annually, (iii) require a quorum of the public body to be physically assembled at one primary location, (iv) require at least one meeting annually to be conducted where members in attendance are physically located and where no members may participate electronically, (v) change the annual reporting period for public bodies conducting electronic meetings from December 1 to December 15, (vi) authorize the conduct of closed meetings during electronic meetings, (vii) eliminate the requirement for recording (either audio or audio and visual) of electronic meetings, (viii) require the annual filing of a written report to the Council and JCOTS, and (ix) eliminate the filing of notice with VITA. The subcommittee reported that it had requested JCOTS staff to advise JCOTS of the subcommittee's recommendations and that it strongly urged the adoption of one consensus draft to be introduced during the 2005 Session.

The HB 1357 Subcommittee, comprised of Council members Senator Houck, Delegate Griffith, and Messrs. Bryan, Edwards, and Axselle, met to discuss the actions of the subcommittee of the Joint Rules Committee reviewing the provisions of HB 1357. The Joint Rules subcommittee had met immediately preceding the Council subcommittee. Delegate Griffith reported that the Joint Rules subcommittee had labored long and hard to develop rules to recommend to the full Joint Rules Committee concerning public access to meetings of the General Assembly, other than floor sessions, committee or subcommittee meetings and conference committee meetings or subcommittees of such entities, which under the provisions of HB 1357, are open to the public. Delegate Griffith stated that the Joint Rules subcommittee, after considerable deliberation and receiving comment from the public, had determined that no rules were required as HB 1357 had adequately addressed the issue of public access to meetings of the General Assembly. Delegate Griffith indicated that he would be making that recommendation to the Joint Rules Committee and stated that he believe the Joint Rules Committee would accept the recommendation of its subcommittee. Delegate Griffith was commended for the candid, open and inclusive manner used by the Joint Rules subcommittee as it deliberated on the provisions of HB 1357.

During the Council subcommittee meeting, Mr. Edwards stated that he believed that HB 1357 was a mistake and that the Council should so state. He added that the good faith work to date would not necessarily preclude the adoption of future rules doing the wrong thing. Representatives of the Virginia Press Association, while commending Delegate Griffith for the candid discussion of the Joint Rules subcommittee, noted that the Council should take the stand that HB 1357 took the process into the internal workings of the General Assembly and moved away from public access. The Virginia Coalition for Open Government echoed the sentiments of the Virginia Press Association.

Senator Houck commented that the deliberations of the Joint Rules subcommittee should be a comfort to everyone in that bright minds had endeavored to craft a rule, but found it was impractical to decide such a rule without undermining the policy of FOIA. Senator Houck, with the consensus of the Council subcommittee, recommended that the HB 1357 Subcommittee of the Council be established as a permanent subcommittee to monitor and react to future attempts by the Joint Rules Committee should it decide to establish access rules to other meetings of the General Assembly. Additionally, the Council subcommittee recommended that the Council commit to do more work in educating members of the General Assembly about FOIA, including the preparation of training and reference materials not just for new members of the General Assembly, but as an ongoing training effort for all members of the General Assembly. The final recommendation was offered by Delegate Griffith and related to committees of conference. He stated that he was aware that one goal of HB 1357 was to grant access to budget conferences; however, he stated that the provisions of the bill should not be interpreted to require face-to-face meetings of all committees of conference when in practice no real meetings occur with the vast majority of committees of conference. He noted that scope of discussion in committees of conference is limited to the matter in controversy--not every provision in a bill.

Review of Legislative Recommendations

The Council reviewed the draft recommended by its Electronic Meetings and Notice Subcommittee as discussed above. There was discussion whether it would be advisable to keep the reporting date for public bodies conducting electronic meetings as December 1 to coincide with the annual report date of the Council. Staff was directed to investigate alternative reporting dates, including the feasibility of requiring quarterly reports for electronic meetings. As part of its discussions, the Council also reviewed the draft adopted by the JCOTS on the same subject. Staff from JCOTS advised that the two drafts had been conformed were essentially identical, except that the JCOTS draft contained language that clarified that electronic meetings could not be conducted by the General Assembly during any regular, special or reconvened session. Delegate Griffith expressed concern that inclusion of this language would undermine the provisions of § 2.2-3707.01 which gives the Joint Rules Committee authority to prescribe rules for public access to meetings of the General Assembly. It was the consensus of the Council not to include this language in its draft. Additionally, the Council requested JCOTS staff to apprise JCOTS that in policy matters relating to FOIA, JCOTS should defer to the decisions of the Council. JCOTS staff advised the Council that the chairman of JCOTS had previously expressed the same sentiment. The Council unanimously voted to recommend the above-described amendments to the electronic meetings section of FOIA to the 2005 Session of the General Assembly.

Legislative Preview

As part of its annual legislative preview, the Council heard from the Office of the Chief Medical Examiner (OCME), the Department of Fire Programs, and the State Board of Election concerning proposed amendments to FOIA.

Dr. Marcella Fierro, the Chief Medical Examiner, explained the need for exemptions that would maintain the confidentiality of third party records acquired by the OCME during death investigations as well as records created by the OCME through surveillance programs, research, and studies of death. Dr. Fierro advised that § 32.1-283.1 provided a FOIA exemption for records of the State Child Fatality Review Team, local and regional fatality review teams, and for family violence fatality review teams, but that no such protections were available for records obtained from the National Violent Death Reporting System or records of maternal mortality, infant metabolic testing population studies. Dr. Fierro stated that without the ability to maintain the confidentiality of third party records, the OCME lacked "the ability to do thorough medico-legal death investigations. In addition, data collection is incomplete and reports on these deaths provide only a partial picture of violent death in Virginia, thereby thwarting meaningful prevention efforts." The Council discussed whether current exemptions for medical records and criminal investigative records adequately protected the records of the OCME. It was the consensus of the Council that, generally, exemptions from public disclosure should follow the record and not be based on who is holding the record. Dr. Fierro stated that the OCME only sought to protect records not previously made public. She indicated that the OCME makes reports on their studies and findings, but that the records aggregate the information and do no contain individual identifying information. Dr. Fierro also indicated that without legislation, there would be an obstacle in obtaining federal grants and contract to carry out Center for Disease Control surveillance and prevention research. The VPA stated that it needed to see the proposal in bill form before it could take a position. The VPA indicated that there are several levels relative to this proposal, including FOIA, federal law, and rules of court. Senator Houck requested Dr. Fierro to meet with the VPA and other interested parties to produce a workable draft. Dr. Fierro stated that her office would be happy to oblige.

Christy King, Policy, Planning and Legislative Affairs Manager, Virginia Department of Fire Programs, advised that the Department was seeking a FOIA exemption for training records of the Department relating to fire and emergency service personnel records. She indicated that after September 11, 2001, there are several potential terrorism-related vulnerabilities associated with the release of training records, including risk of impersonation of fire and rescue responders and identification of gaps in the fire and rescue agencies to address chemical, biological, and explosive events. The FOIA exemption suggested by the Department would be found in § 2.2-3705.2 and protect "fire and emergency service personnel training records maintained by the Virginia Department of Fire Programs, including department name, fire department identification number, student name, instructor number, certifications approved by the Virginia Fire Services Board, certificates of attendance, course code, description of classes for certification, standard year, hours, create dates and certification." Representatives of the Virginia Fire Chiefs Association and the Professional Firefighters Associations stated that they supported the Department's proposed legislation. The VPA opposed the legislation on the grounds that the records described would be covered under the personnel exemption already found in FOIA. The VPA also stated that there was a tenuous connection between terrorism and the records sought to be protected by the Department.

Rosanna Bencoach, Manager, Policy Division, State Board of Elections (SBE), advised the Council that the SBE was seeking approval from the administration for an exemption from FOIA for reports detailing voting equipment and ballot security audits/assessments prepared by local electoral boards in order to prevent breaches of the new computerized voting equipment that could be obtained from public disclosure of SBE security audits. A corresponding meeting exemption was also proposed to protect discussions of such records. Members of the Council expressed concern that voting information and voting machine operational efficiency should be subjected to public scrutiny. The Council noted that FOIA currently provides a record 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" that would protect many of the types of records identified by the SBE for protection. The Council acknowledged, however, that there was no corresponding meeting exemption found in current law. The Council requested the SBE to work with interested parties in an attempt to agree on a draft proposal.

Other Business

The Council discussed HB 543 (May) from the 2004 Session.⁴ Staff advised the Council that JCOTS, who had recommended the bill originally, was not recommending the bill for reenactment due to practical and other concerns with the bill previously expressed by the Council and other parties. The Council by consensus agreed that the bill should not be reenacted. The Council, however, acknowledged that release of social security numbers and other unique identifying numbers is a problem, but one for which no workable solution has yet been developed.

The Council also reviewed HB 4874 (Cole) from the 2004 Session.⁵ The Council had previously considered HB 487 as part of its study of bill referred to it by the 2004 General Assembly. In light of the fact that the Federal Aviation Administration (FAA) maintains a website which would allow any person to ascertain the name and address of owners of aircrafts as well as aircraft identifying information and that the FAA website includes the ability to search this information on a state-by-state basis or by a particular county within a state, the Council by consensus agreed that no such FOIA exemption was advisable.

A draft copy of the Council's 2004 annual report was distributed for review by the Council. Senator Houck requested that Council members review the draft and submit comments or revisions to staff before December 17, 2004 so that the annual report could be published before the start of the 2005 Session.

Of Note

Staff noted that since its last meeting on September 16, 2004, it had responded to 300 requests for assistance. Of those requests, 293 were for informal opinions (telephone or email inquiries) and seven were for formal, written opinions. Of the informal inquiries, 147 were made by government officials, 103 by citizens, and 43 by media representatives. For written opinions, five were requested by citizens, and one each by government and the media.

The Council set Wednesday, March 23, 2005 as its next meeting date. The meetings for the remainder of 2005 would be set at the March 23, 2005 meeting.

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

¹ Council members Houck, Griffith, Bryan, Fifer, Miller, Moncure, and Wiley were present. Council members Axselle, Edwards, Hallock, and Yelich were absent. Mr. Hopkins monitored the meeting by telephone.
² As distinguished from the pilot program pursuant to Chapter 704 of the 1999 Acts of Assembly, as amended, which requires only that a quorum be physically present in Virginia.
³ The standing advice of the Council is that if the requirements of § 2.2-3708 are met (i.e., 30-day notice and remote locations that are accessible to the public), but a member of a public body, due to unforeseen circumstances, cannot attend either a remote or the primary location, then that member may only monitor the meeting and may not actively participate in the meeting or vote. The same would be true where the meeting was not noticed as an electronic meeting and a member of a public body, due to unforeseen circumstances, could not attend the meeting.
⁴ HB 543 would prohibit the filing or creation of 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 provides that it would not become effective unless reenacted by the 2005 Session of the General Assembly.
⁵ HB 487 would provide an exemption for records of licensed public use airports containing information concerning (i) the identity of the owners or operators of aircraft based at the airport, including the owner's or operator's name, home address and telephone number and (ii) the tail numbers and other identifying information relating to the aircraft based at the airport from the mandatory disclosure requirements of FOIA.