- Report Published -
|Report of the Virginia Freedom of Information Advisory Council - December 2014|
|Virginia Freedom of Information Advisory Council|
|§ 30-179 (7.)|
|*This report was replaced in its entirety by the Virginia Freedom of Informatino Advisory Council on December 17, 2014.|
In its fourteenth year, the Council continued to fulfill its role as a clearinghouse for public access issues for the Virginia General Assembly. The Council has kept abreast of trends, developments in judicial decisions, and emerging issues related to the Virginia Freedom of Information Act (FOIA) and access generally. In its 14-year history, the Council has provided more than 20,000 formal and informal advisory opinions to citizens of the Commonwealth, media representatives, and state and local government officials and has conducted over 770 FOIA training programs. The Council is recognized as the forum for evaluating proposed FOIA and related public access legislation and routinely conducts comprehensive studies of FOIA and other Virginia laws to ensure Virginia’s commitment to open government while balancing the need to protect the public’s negotiating and litigation positions, privacy, and safety.
During this reporting period—December 1, 2013, through November 30, 2014—the Council examined FOIA legislation and other public access issues referred to it by the General Assembly. The three bills referred to the Council by the General Assembly are: (*3)
• HB 339 (Anderson) / SB 387 (Reeves) - FOIA; certain proprietary records of the Department of Rail and Public Transportation.
• HB 788 (LeMunyon) - FOIA; out-of-state requests for records.
• HB 839 (Brink) - FOIA; applicability to the Office of the Attorney General.
Additionally, House Joint Resolution No. 96 (HJR 96, LeMunyon) was enacted, which directs the FOIA Council to study all exemptions contained in FOIA and determine the continued applicability or appropriateness of such exemptions. HJR 96 directs the Council to determine whether FOIA should be amended to eliminate any exemption from FOIA that the FOIA Council determines is no longer applicable or appropriate. HJR 96 also requires the FOIA Council to examine the organizational structure of FOIA and make recommendations to improve the readability and clarity of FOIA. The FOIA Council is required to consider comment from citizens of the Commonwealth; representatives of state and local governmental entities; broadcast, print, and electronic media sources; open-government organizations; and other interested parties. All agencies of the Commonwealth are required to provide assistance to the FOIA Council for this study, upon request. The resolution requires the FOIA Council to report its findings and recommendations by December 1, 2016. To begin the three-year study, the Council developed a study plan and organizational timetable and addressed issues such as the use of subcommittees and work groups to carry out the study as directed by HJR 96.
The Council appointed two subcommittees to begin work on the HJR 96 FOIA study: the Records Subcommittee and the Meetings Subcommittee. HB 339 and SB 387, referred to the Council for study by the General Assembly, were added to the work of the Records Subcommittee. HB 788 and HB 839 were considered by the full Council, which took no action on either bill. The Records Subcommittee consisted of Council members Robert Tavenner (chair), Christopher Ashby, Stephanie Hamlett, and G. Timothy Oksman. The Meetings Subcommittee consisted of Council members George Whitehurst (chair), Kathleen Dooley, John Selph, Forrest “Frosty” Landon, and G. Timothy Oksman. Three recommendations for amending or eliminating exemptions were made by the respective subcommittees and adopted by the Council. However, the Council decided to defer introduction of this legislation until the three-year study of FOIA is completed. All recommendations of the Council concerning HJR 96 will be presented in one omnibus bill in the 2017 Session. Summaries of the Records Subcommittee’s and Meetings Subcommittee’s work, including agendas, recommendations, and exemption worksheets, are available on the Council’s website.
The Council continued to monitor Virginia court decisions relating to FOIA. In the spring of 2014 the Supreme Court of Virginia issued an opinion in American Tradition Institute v. Rector and Visitors of the University of Virginia. This case concerned a request for a former professor’s electronic mail concerning climate science research. The decision addressed an exemption for certain higher education records and the use of the term “proprietary” in that exemption, as well as charges allowed under FOIA. In summary, the Court upheld the decisions of the trial court in favor of the University of Virginia, holding that the term “proprietary” should be given its ordinary usage, reflecting rights of ownership and control; that the University had established all of the elements for the exemption to apply; and that public bodies may charge under FOIA for reviewing records “to assure that those records are responsive, are not exempt from disclosure, and may be disclosed without violating other provisions of law.”
The Council continued its commitment to providing FOIA training. The Council views its training duty as its most important mission and welcomes every opportunity to provide FOIA training programs. During 2014, Council staff conducted 53 FOIA training programs throughout Virginia at the request of state and local government officials, the media, and citizens. Training programs are tailored to meet the needs of the requesting organization and are provided free of charge. Also, all Council-sponsored training programs, whether the statewide workshops or specialized programs, are preapproved by the Virginia State Bar for continuing legal education credit for licensed attorneys. The training programs are also preapproved by the Department of Criminal Justice Services for law-enforcement in-service credit, the Virginia Municipal Clerks Association, and the Virginia School Board Association for academy points. The Council also held its annual FOIA Workshops in Manassas, Richmond, and Norfolk.
For this reporting period, the Council, with a staff of two attorneys, responded to 1,494 inquiries. Of these inquiries, six resulted in formal, written opinions. The breakdown of requesters of written opinions is as follows: one by a government official, three by media representatives, and two by citizens. The remaining requests were for informal opinions, given via telephone and email. Of these requests, 873 were made by government officials, 148 by media, and 467 by citizens. Since 2006, the Council has seen an increase in the number of informal opinion requests compared with requests for formal written opinions. This continuing trend appears to stem from the Council’s reputation for fairness and reliability in its informal opinions and as a creditable source for FOIA guidance before disputes arise.
FOIA was again the subject of significant legislative activity in the 2014 Session. The General Assembly passed a total of 10 bills amending FOIA during the 2014 Session. One bill passed the General Assembly that was recommended by the FOIA Council: HB 219, which extends an existing record exemption for educational institutions for confidential letters and statements of recommendation to include records respecting an application for promotion. This bill was the only legislation recommended by the FOIA Council.
One bill creates a new section (§ 2.2-3703.1) in FOIA as follows:
• Provides that nothing in FOIA shall have any bearing upon disclosures required to be made pursuant to any court order or subpoena, nor shall any discretionary exemption from mandatory disclosure be construed to make records covered by such discretionary exemption privileged under the rules of discovery, unless disclosure is otherwise prohibited by law. (HB 380 adding new § 2.2-3703.1.)
One bill adds a new records exemption as follows:
• Creates an exemption for certain records of the judicial performance evaluation program. (HB 272 amending § 2.2-3705.7.)
Eight of the 10 bills amend existing provisions of FOIA as follows:
• Amends the current provision allowing individual members of public bodies to participate in public meetings by electronic means when a personal matter or emergency prevents their physical attendance. (HB 193 and SB 161 amending § 2.2-3708.1.);
• Amends an existing record exemption for educational institutions for confidential letters and statements of recommendation placed in the records of educational agencies or institutions to include records respecting an application for promotion. (HB 219 amending § 2.2-3705.4.);
• Amends an existing exemption for records of administrative investigations to include certain records of investigations conducted by a public institution of higher education relating to individual employment discrimination complaints or audits/investigations of any officer, department, or program at such institutions. (HB 703 and SB 78 amending § 2.2-3705.3.);
• Amends the existing requirement for state agencies in the executive branch to post a statement of FOIA rights and responsibilities on their website to add a statement regarding allowable charges. (HB 837 amending § 2.2-3704.1.);
• Adds internal auditors appointed by the head of a state agency or the board of visitors of a public institution of higher education to the list of those who may use a current exemption for audit investigation records. (HB 1053 amending § 2.2-3705.3.);
• Changes the name of the State Lottery Department to the Virginia Lottery, the State Lottery Board to the Virginia Lottery Board, and the State Lottery Fund to the Virginia Lottery Fund. The bill contains numerous technical amendments to accomplish these name changes. (HB 1079 amending §§ 2.2-3705.3, 2.2-3705.7, and 2.2-3711.)
A more detailed report of the bills discussed above and other public access bills passed during the 2014 Session appears on the Council’s website and is attached as Appendix D to the 2014 Annual Report of the FOIA Council.
Also of significance was the 2013 Council-recommended HB 1263 (Stuart) (*4), which relaxed the quorum requirements for the conduct of electronic communication meetings (subsection H of § 2.2-3708) as a one-year pilot program. As enacted, this provision allowed certain state-level advisory bodies to conduct meetings using audio-visual technology without assembling a quorum in a single physical location. However, no state-level advisory bodies took advantage of this pilot program, and the General Assembly did not act to extend the sunset provision. As a result, Subsection H of § 2.2-3708 expired on July 1, 2014.
In response to confusion concerning the production of records from geographic information systems (GIS), Council staff worked with staff of the Virginia Information Technologies Agency (VITA) to produce a guidance document on how to handle GIS records under FOIA. The Council learned that the current language in FOIA only addresses charges for topographic maps and is outdated. While data collection remains much the same as it was in the past, the technology used is more accurate, of higher quality, and easier to access. For example, Google mapping technology allows for viewing by address or tax parcel and provides aerial views and views of structural footprints. Additional options are available from other competitive software providers and through “cloud” technologies. Many states and localities now provide free online access to mapping technology. Given this technological progress, GIS data need not be treated differently from other records subject to FOIA. As a further example, the Virginia Base Mapping Program has a FOIA exemption and latitude to set charges, but now operates at a much lower cost than it did in 2002. There should not be any privacy issues from using “cloud” technologies, and maps can be produced at any desired size.
The Council grappled with an unexpected electronic-communication meeting issue raised at its annual legislative preview. The issue concerned an instance when one Board member’s request to participate by electronic means due to a personal matter was denied, whereas previously another member’s request had been approved. The resulting perception was that the denial in the second instance was based on how the majority felt the member who requested remote participation would vote on a controversial issue. Such a result was not what was intended by the law allowing such remote participation for personal matters, in that the law was not meant to be used to “pick and choose” participants based on their positions on issues. The Council reviewed legislation that would require a one-time determination by each public body regarding its policy on approving such participation. The policy would then be applied uniformly to all members. Initially, the Council questioned whether this might be a case of a bad situation making for bad law, and members were hesitant to amend the law due to a single instance. Testimony on this issue indicated that the situation would likely reoccur. Concern was also raised that the proposal would allow each local public body to set policy, rather than having a uniform access policy set by the General Assembly. While the Council took no action on this issue, Council staff participated with other interested parties to craft a legislative solution.
Council staff also participated, along with the Office of the Attorney General, in the production of a FOIA Open Meetings video as part of a 2014 legislative directive to the State Council of Higher Education for Virginia (SCHEV). Though the video was produced for Virginia’s boards of visitors of public institutions of higher education, it applies to any deliberative body subject to FOIA’s open meetings requirements. Its message is that prior experience on private corporate boards does not translate to service on public boards and commissions. The Council commends this video as applicable and instructive to any member of a public board or commission. The FOIA video is available on the SCHEV website.
In 2014, the Council welcomed Tim Oksman as the designee of the Attorney General to the Council.
(*3) Summaries of each of the bills referenced appear as Appendix A to this report.
(*4) Virginia Freedom of Information Act; meeting by electronic communication means by certain committees, subcommittees, etc., of state public bodies; personal matters. Authorizes an advisory public body, defined as any state public body classified as advisory pursuant to § 2.2-2100, or any committee, subcommittee, or other entity, however designated, of a state public body created to advise the state public body, to meet by electronic communication means without a quorum of the advisory public body being physically assembled at one location, provided, among other requirements, the meeting is conducted utilizing a combined audio and visual communication method. The bill requires any advisory public body holding this kind of electronic-communication meeting to make an audiovisual recording of the meeting, which recording shall be preserved by the advisory public body for a period of three years from the date of the meeting. The bill also enhances the annual reporting requirements for any public body authorized to conduct electronic communication meetings and requires the FOIA Council to develop a form that an authorized public body must make available to the public at any such meeting for public comment. The above-described provisions of the bill by its terms will expire on July 1, 2014. Finally, the bill allows a member of any public body to participate in a meeting by electronic communication means due to personal matters under certain circumstances. Currently, such remote participation is allowed only for emergency, medical condition, or distance from the meeting location of more than 60 miles. The bill is a recommendation of the Virginia Freedom of Information Advisory Council.