HJR 187
Joint Subcommittee to Study the Virginia Freedom of Information Act
July 15, 1998, Richmond
During the joint subcommittee's second meeting of the interim, staff reviewed the freedom of information (FOI) laws of selected states for comparison data in three categories: (i) the existence of an agency to assist in the enforcement or implementation of the laws, (ii) the use of alternative dispute resolution to resolve disputes and controversies that arise in the day-to-day implementation of freedom of information laws, and (iii) the fines or penalties provided for violations.In Virginia, no agency has enforcement or implementation authority relative to the open meeting and access to public records requirements under the Freedom of Information Act. In addition, while Virginia law does provide for public bodies to make reasonable efforts to reach agreement with requesters regarding public records, there is no statutory provision mandating alternative dispute resolution, nor does there exist a statewide informal or voluntary program to resolve such disputes.
The states selected for comparison were Maryland, Florida, Kentucky, New York, Connecticut, Georgia, Washington, Hawaii and North Carolina.
Other States
Maryland. Two FOI statutes, one governing open meetings and the other access to public records.
- Assisting agency: The Open Meetings Compliance Board, which is advisory and limited to open meetings issues.
- Alternative dispute resolution: Available only with regard to open meeting issues.
- Penalties and fines: There is a civil penalty for participating in a meeting not held in accordance with the open meetings law, and any official action taken at an unlawful meeting may be voided by the court. In addition, there are criminal penalties for willful violation of the public records law.
Florida. Two FOI statutes, one governing open meetings and the other access to public records.
- Assisting agency: The Office of the Attorney General operates an informal and voluntary Public Mediation Program for open meetings and open records disputes.
- Alternative dispute resolution: Available through the Public Mediation Program.
- Penalties and fines: There are criminal and noncriminal penalties for knowingly violating the open meetings and open records laws. Any official action taken at a meeting not held in accordance with the law is void. If the court finds that an agency has violated the law, it must award attorneys' fees. In addition, except in cases where the board sought and took the advice of its attorney, attorneys' fees may be assessed against individual members of the board.
Kentucky. Two FOI statutes, one governing open meetings and the other access to public records.
- Assisting agency: The Office of the Attorney General serves as an impartial tribunal with the authority to issue legally binding decisions in regard to open meetings and access to public records issues.
- Alternative dispute resolution: Yes.
- Penalties and fines: In open meetings cases, the court may award up to $100 for each violation in addition to attorneys' fees. A member of a public body who attends a meeting that the member knows is held in violation of the law may be subject to a fine, and any official action taken at an unlawful meeting is voidable by the court. In public records cases the court may award up to $25 for each day a person was denied access to the records in addition to attorneys' fees. There are also criminal penalties for willful concealment or destruction of a public record.
New York. Two FOI statutes, one governing open meetings and the other access to public records.
- Assisting agency: The Advisory Committee on Open Government.
- Alternative dispute resolution: Yes.
- Penalties and fines: Criminal penalties for willful concealment or destruction of a public record with intent to prevent public inspection.
Connecticut. A single FOI statute covers both open meetings and access to public records requirements.
- Assisting agency: Freedom of Information Commission.
- Alternative dispute resolution: The commission operates an ombudsman program.
- Penalties and fines: Criminal penalties for failure to comply with an order of the commission and willful destruction of a public record without the approval required by the law. A civil penalty may be imposed against the custodian or other official for unreasonable denial of a public record. Action taken at a meeting not held in compliance with the act may be voided by the commission.
Georgia. Two FOI statutes, one governing open meetings and the other access to public records.
- Assisting agency: None. The Office of the Attorney General may bring civil or criminal action to enforce open meetings and open records laws.
- Alternative dispute resolution: No statewide program.
- Penalties and fines: Criminal penalties for knowingly conducting or participating in an unlawful public meeting.
Washington. Two FOI statutes, one governing open meetings and the other access to public records.
- Assisting agency: In all public records cases, except denials by local government agencies, the requester may ask the Office of the Attorney General to provide a written opinion on whether the record is exempt.
- Alternative dispute resolution: No statewide program.
- Penalties and fines: The court must award attorneys' fees to any person who prevails against a public agency. In open meetings cases, the court may impose a civil penalty of $100 against a member of a public body who knowingly attends a unlawful meeting, and any official action taken at an unlawful meeting is void. In public records cases the court may award up to $100 per day for each day the right to inspect or copy the public record was denied.
Hawaii. Two FOI statutes, one governing open meetings and the other access to public records.
- Assisting agency: The Office of Information Practices (OIP) located in the Office of the Lieutenant Governor.
- Alternative dispute resolution: Available through the OIP.
- Penalties and fines: The court must award attorneys' fees and costs to any person who prevails against a public agency in a public records case. In addition, there are criminal penalties for the intentional disclosure of a record if the person or agency had actual knowledge that the disclosure is prohibited and for intentionally gaining access to a public record by false pretenses. In open meetings cases, the award of attorneys' fees is discretionary. There is a criminal penalty for willful violation of the open meetings law, and any final action taken at an unlawful meeting is voidable upon proof that the violation was willful. In addition, the law provides for the possible summary removal of the member upon conviction.
North Carolina. Two FOI statutes, one governing open meetings and the other access to public records.
- Assisting agency: The Sunshine Office, operated by the Office of the Attorney General.
- Alternative dispute resolution: Available through the Sunshine Office.
- Penalties and fines: In public records cases, the court may order that attorneys' fees assessed against an agency be paid personally by any public employee or public official who knowingly or intentionally committed, permitted or caused a violation of the public records law. There are criminal penalties for failing to turn over public records once a term of office is over and for removing, altering or destroying a public record.
Richmond Times-Dispatch
The training and technology director of the Richmond Times-Dispatch made a presentation entitled Records in the Information Age--Access to Electronic "file drawers." Noting that today's records are increasingly stored in electronic form, he indicated that the benefits of electronic records include less storage space required, easy retrieval of records, and flexibility in updating and revising information. Another benefit of electronic records is that one format often can be changed easily into another. Access to electronic records, however, is not without certain impediments: the lack of uniformity in defining what is the actual cost to a public body in supplying requested records; the frequent storage of records in obscure or proprietary formats, often invented by private companies whose programs to read the databases must be purchased for access to the data; and the view that extracting information from a database is tantamount to creating a new record--which is not required by FOIA. The newspaper director opined that large businesses, newspapers, and law firms have greater resources to overcome these impediments than the average citizen.
Proposed Redraft
The joint subcommittee reviewed the proposed redraft of FOIA, originally offered by the Virginia Press Association and revised by staff to make necessary housekeeping and other technical changes. At the conclusion of this review, the joint subcommittee identified numerous changes in the draft to be addressed at future meetings. Some members of the joint subcommittee stated that perhaps the problem with FOIA may not be in the law itself but in its understanding by average citizens. If that is the case, a solution may be to appoint an entity to assist the public in gaining access to public records and meetings instead of changing the statute. As it relates to access to electronic records, concern was raised regarding the meaning of the term "routine" manipulation of data.
At the conclusion of the meeting, Chairman Woodrum requested that interested parties meet separately to try to narrow the issues relating to the proposed redraft and report back to the joint subcommittee on their progress. Additionally, by consensus the joint subcommittee agreed to divide consideration of FOIA issues into three categories--open meetings, access to records, and definitional and related issues.
The next meeting of the joint subcommittee has been tentatively scheduled for August in Richmond. The subject of the meeting will be access to records.
The Honorable Clifton A. Woodrum, Chairman
Legislative Services contact: Maria J. K. Everett