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    Document Summary
    - Report Published -

    House Document No. 15
    PUBLICATION YEAR 2011
    View PDF Version*

    Document Title
    Report of the Virginia Freedom of Information Advisory Council - December 2011

    Author
    Virginia Freedom of Information Advisory Council

    Enabling Authority
    30-179 (6.)

    Executive Summary
    *The Executive Summary was replaced in its entirety by the Virginia Freedom of Information Advisory Council on December 21, 2011.

    In its eleventh year, the Council continues to fulfill its role to the Virginia General Assembly as a clearinghouse for public access issues. The Council has kept abreast of trends, developments in judicial decisions, and emerging issues related to FOIA and access generally. In its 11 year history, the Council has provided more than 14,500 formal and informal advisory opinions to citizens of the Commonwealth, media representatives, and state and local government officials; and has conducted approximately 588 FOIA training programs. In addition, the Council is recognized as the forum for evaluating proposed FOIA and related public access legislation. The Council 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, 2010 through November 30, 2011-- the Council examined FOIA legislation and other public access issues referred to it by the General Assembly. The four bills referred to the Council by the General Assembly are as follows:

    1. HB 1722 (Marshall, R.G)--FOIA; designation of records; penalties for certain violations.
    2. SB 812 (Martin)--FOIA; access to salary information.
    3. SB 1467 (Edwards)--FOIA; disclosure of criminal investigative records.
    4. HB 1935 (Ware, O.) -Legal notices; use of websites, radio, and television, etc. (*1)

    The Council reviewed HB 1722 and after discussing the substantial practical difficulties in requiring each public employee creating public records to designate on the record whether it is open or exempt, the Council agreed unanimously not to go forward with HB 1722. It was the consensus of the Council that trying to get government more organized vis a vis FOIA is a good idea; the bill, however, has the opposite effect and is unworkable as written.

    The Council also considered HB 1935. While the issue of publication of legal notices is very important to local governments and citizens, it is not a FOIA issue and therefore not within the purview of the Council. It was suggested that other entities, including the House Committee on Counties, Cities and Towns, the Senate Committee on Local Government, and the Governor's Reform Commission, were more appropriate because they have subject matter jurisdiction over the issue raised by HB 1935.

    The Council's Personnel Records Subcommittee (*2) was created to examine SB 812. Based on the Subcommittee's recommendation, the Council took no action to change to the current law ( 2.2-3705.8) that requires the mandatory disclosure of the names and salaries/rate of pay of all public employees earning $10,000 or more annually. Extensive study of this issue included review of the legislative history of 2.2-3705.8 (formerly 2.1-342 B), a 50-state review of how other states addressed this issue, and the examination of the recommendations of prior joint subcommittees of the General Assembly that studied FOIA. Section 2.2-3705.8 was enacted in 1978 (*3) and there is no legislative history discussing why the threshold was implemented, or why $10,000 was the chosen amount. What legislative history is available indicates that the law passed the Senate of Virginia without any threshold in place, but the $10,000 threshold was added by the House of Delegates. It was the House version that ultimately was enacted and continues to be the law. Additional research indicated that Virginia is one of only three states that have any restrictions on the release of name and salary information of public employees. In addition, neither of the two prior joint subcommittees established by the General Assembly to study the provisions of FOIA in the late 1980's and 1990's recommended any change to this provision nor did they suggest an "escalator clause" or other mechanism in the statute to raise the $10,000 threshold. Further, there appears to be a current trend toward for greater transparency and accountability in government, which is reflected in the online posting of public employee name and salary information in states such as New Mexico. Increased transparency in government is now part of the collective "DNA" of Americans. Disclosure of salary information is also an equity issue for public employees. Transparency regarding salaries and rates of pay of other similarly situated employees ensures fair treatment in the workplace and may reveal instances of nepotism. Compensation decisions should be based on an employee's knowledge, skills, and ability and not some subjective standard. Concerns for embarrassment by lowest level employees, privacy concerns of public employees in general, adverse impact on the morale of the public workforce, and security of individuals against identity theft were thoughtfully considered. FOIA strives for balance between the public's right to know and government needs. Ultimately, it was felt that the current law strikes the appropriate balance between the public's right to know and a public employee's interest in privacy.

    The Council's Criminal Investigative Records Subcommittee (*4), created in 2010 was continued in 2011 to examine SB 1467 and to consider a separate proposal concerning access to criminal and other law-enforcement records from the Virginia Press Association (VPA). Senator Edwards, patron of SB 1467, stated that one reason he brought the bill was because there was inconsistency regarding what is released by law-enforcement agencies. While aware of the need for privacy in certain matters, Senator Edwards expressed that his experience was that many law-enforcement agencies would refuse to release records as a matter of policy to avoid improper application of discretion that might be perceived as biased or discriminatory. He further noted that FOIA already contains many other exemptions for information that would need to be protected in criminal investigative files that would still apply even after the investigation was over. The gist of the Subcommittee's work was to see if there is any reason to change the existing exemption for criminal investigative records. The Council adopted the Subcommittee's recommendation not to take any further action on SB 1467, but to continue to study the issues raised because of the amount of interest in access to criminal investigative files and other law enforcement records. Council staff met with interested stakeholders (the Virginia Press Association, the Virginia Coalition for Open Government, the Virginia Association of Chiefs of Police, the Virginia State Police, the Virginia Sheriffs' Association, the Virginia Municipal League, the Virginia Association of Counties, as well as law enforcement representatives from the Culpeper County Sheriff's Office and Fairfax County Police Department) three times this year to see if consensus could be reached about any changes to the existing law. The stakeholder workgroup used a draft prepared by the VPA as a vehicle for discussion at these meetings. The workgroup did not reach agreement on a legislative proposal, but intends to continue its work in 2012. The current plan is for VPA representatives to prepare a position paper regarding issues of concern in the current law, which will be posted on the Council website and shared with the other interested parties. After the stakeholders share the paper with their constituents to get their reactions, the workgroup discussions will resume at a date to be determined after the 2012 Session of the General Assembly.

    The Council continued to monitor Virginia court decisions relating to FOIA. In the spring of 2009, the United States District Court for the Eastern District of Virginia heard the case of McBurney v. McDonnell (Case No. 3:2009cv44). In this consolidated case, three out-of-state plaintiffs challenged on federal constitutional grounds (privileges and immunities) the provisions of FOIA granting access rights to Virginia citizens. On April 29, 2009, the Court entered an order dismissing the claims of the three out-of-state plaintiffs on procedural grounds. (*5) However, on appeal, the United States Court of Appeals for the Fourth Circuit ruled for two of the three plaintiffs, saying they can proceed with their challenge on the merits to the citizens-only provision of FOIA. On remand, the Eastern District court issued an opinion on the merits in January 21, 2011, that upheld the existing provisions of FOIA limiting access rights to Virginia citizens. The Eastern District determined that the limitation of rights to Virginia citizens did not burden a fundamental right and was closely related to a substantial state interest, therefore it did not violate the Privileges and Immunities clause of the United States Constitution. The court further determined that because Virginia's FOIA does not implicate principles of economic protectionism, and any affect on out-of-state business is incidental, it does not violate the dormant Commerce Clause. This decision was appealed to the Fourth Circuit, which heard arguments in the case on October 25, 2011 (McBurney v. Young, Case No. 11-1099). As of November 30, 2011, the Fourth Circuit has not yet issued its opinion. Please note that the style of the case has changed several times as the named defendant has changed; in chronological order, this case has been styled McBurney v. McDonnell, McBurney v. Mims, McBurney v. Cuccinelli, and most recently on appeal, McBurney v. Young.

    On November 4, 2011 the Virginia Supreme Court issued its decision in Christian v. State Corporation Commission (SCC) (Record No. 102477), ruling that the SCC is not a public body subject to the provisions of FOIA. George Christian sought records from the SCC. In its reply, the SCC asserted that it was not subject to FOIA and directed Mr. Christian to websites where he might find the sought after information. Mr. Christian petitioned the SCC; his petition was dismissed; he then appealed to the Supreme Court of Virginia. As a threshold argument, the Court considered whether the SCC was subject to FOIA. The Court concluded that the SCC was not subject to FOIA based on three arguments: (1) access to SCC records is governed by a separate set of laws; (2) the SCC's authority is derived from the Virginia Constitution rather than delegated by legislative or executive action; and (3) FOIA does not contain an enforcement mechanism applicable to the SCC. Having concluded that the SCC was not subject to FOIA, the Court affirmed the order of the SCC dismissing Mr. Christian's petition.

    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 2011, Council staff conducted 62 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 pre-approved by the Virginia State Bar for continuing legal education credit for licensed attorneys. In addition to Virginia State Bar continuing legal education credit, the training programs are also pre-approved 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.

    For this reporting period, the Council, with a staff of two attorneys, responded to 1,540 inquiries. Of these inquiries, seven resulted in formal, written opinions. The breakdown of requesters of written opinions is as follows: three by government officials, none by media representatives, and four by citizens. The remaining requests were for informal opinions, given via telephone and e-mail. Of these requests, 821 were made by government officials, 560 by citizens, and 152 by media. Over the past several years, the Council has seen an increase in the number of informal opinion requests as compared to requests for formal written opinions. This continuing trend appears to stem from the Council's reputation as a creditable source for FOIA guidance before disputes arise and the reliability of its informal opinions.

    FOIA was again the subject of significant legislative activity in the 2011 Session. The General Assembly passed a total of 20 bills amending FOIA during the 2011 Session. House Bill 1860 (Anderson) and identical Senate Bill 763 (Puller), which require that the party against whom a FOIA petition is brought must receive a copy of the petition at least three working days prior to the filing of the petition, both passed as recommendations of the Council. Senate Bill 951 (Houck), which clarifies that the Library of Virginia is the custodian of records transferred to it for permanent archiving pursuant to the duties imposed by the Virginia Public Records Act ( 42.1-76 et seq.) and for responding to requests for such records made under FOIA, also passed as a recommendation of the Council. A more detailed report of the bills discussed above and those FOIA and other public access bills passed during the 2011 Session appear on the Council's website and are attached as Appendix D to this report.

    In 2011, the Council welcomed Delegate Sal R. Iaquinto, Robert L. Tavenner, James Schliessman, Kathleen Dooley, and Stephanie Hamlett to the Council. Each new member was appointed to serve a four-year term. (*6) Delegate Iaquinto was elected as vice chair by a vote of 11-0-1. The Council also said goodbye to Council members Mary Yancey Spencer, Roger Wiley, E.M. Miller, Jr., and Eric Gregory. Ms. Spencer was appointed by the Governor and served on the Council from 2007 until July 2011 when her term expired. Mr. Wiley, appointed by the Senate Committee on Privileges and Elections, was an original member of the Council, serving faithfully until July 2011 when his term(s) expired. Another original member, Mr. Miller, serving ex officio, retired from state service on July 1, 2011.

    The Council also bid farewell to the Honorable R. Edward Houck, Member, Senate of Virginia and the Chair of the Council. Senator Houck was an original appointee to the Council in 2000, and served as both chair and vice chair during his considerable and dedicated service to the Council. His leadership, vision, and commitment to government transparency will be sorely missed.
    _______________________________
    (*1) HB 1722 (Marshall, R.G.) FOIA; designation of records; penalties for certain violations. Requires that at the time of creation of any public record, the custodian of such records that are subject to FOIA shall designate whether the record is subject to FOIA's mandatory disclosure provisions or otherwise exempt from disclosure. The bill requires that such designation shall appear on the face of the record and be updated by the custodian in a timely manner in the event of any changes. Failure to make the required designation shall, upon receipt of a request for such record, waive any charge authorized under FOIA. The bill also provides that in addition to the civil penalty under FOIA, a public employee found to have committed a willful and knowing violation of FOIA may be subject to other disciplinary action, including suspension, demotion, or termination of public employment. The bill contains technical amendments.
    SB 812 (Martin) FOIA; access to salary information, etc., of public employees. Allows public access to the records of only the job position, official salary, or rate of pay of, and the allowances or reimbursements for expenses paid to, any officer, official, or employee of a public body. The bill specifically excludes the name of any such officer, official, or employee from disclosure.
    SB 1467 (Edwards) FOIA; criminal investigative records. Amends the definition of "criminal investigative file" so that the exemption applies to records relating to active or ongoing investigations or prosecutions.
    HB 1935 (Ware, O.) Legal notices. Allows localities to meet certain notice requirements by utilizing their web sites, radio or television rather than a newspaper of general circulation.
    (*2) Council members Ed Jones, Frosty Landon, and Kathleen Dooley served on the Subcommittee.
    (*3) Chapter 810 of the 1978 Acts of Assembly (SB 67, Senator Mitchell).
    (*4) Council members Craig Fifer, Sandy Treadway, John Selph, and James Schliessman served on the Subcommittee.
    (*5) The Court held that the three-out-of-state plaintiff's lacked standing to bring the claims and improperly named the Attorney General as a party to the action.
    (*6) Delegate Iaquinto was appointed by the Speaker of the House of Delegates; Mr. Tavenner as Director of the Division of Legislative Services as an ex officio member of the Council with voting privileges; Mr. Schliessman as the designee of the Attorney General; Ms. Dooley was appointed by the Senate Committee on Rules as the local government representative; and Ms. Hamlett was appointed by the Governor as a citizen/state employee representative.