HJR 187

Joint Subcommittee to Study the Virginia Freedom of Information Act

August 26, 1998, Richmond

The topic of the joint subcommittee's third meeting of the interim was access to records. For use in future deliberations, staff provided the joint subcommittee with a comparison of the current law regarding access to records under the Freedom of Information Act (FOIA) and the proposed amendments currently under consideration.

Virginia Municipal League

Speaking on behalf of the Virginia Municipal League, a member of the James City County Board of Supervisors reported that from the local government perspective, public decisions ought to be made in public. However, there are times when it is desirable not to present financial, legal, or other information in public, when such information would be detrimental to the public welfare. He also expressed concerned that any unreasonable restriction on the operation of public bodies would result in public officials not getting the information they need to do their jobs.

On the specific issue of access to records, concern was also raised that any unreasonable restriction on a public body to maintain files would result in serving an individual's interest to the detriment of the public generally. Citizens want good, sensible solutions to their problems; most of that can be done in public, except where its detrimental to the public welfare. The assumption should be that public officials are decent people trying to do a good job and find solutions to problems. The county supervisor concluded that he had seen the joint subcommittee's working draft and had identified specific areas of concern, including raising the standard of proof to clear and convincing evidence, narrowing the legal exemption for closed meetings, and not giving public bodies the option to require that a request for records be in writing.

Local Government Attorneys of Virginia, Inc.

Roanoke's city attorney spoke on behalf of the Local Government Attorneys of Virginia, Inc. (LGA), indicating that as gatekeepers of FOIA at the local government level, local government attorneys understand the need for openness in government, but believe that the interest of the public is not well served if every document or discussion is made public. The LGA is concerned that the proposed amendments to FOIA would interfere with the attorney-client relationship and represent bad public policy. Citing four specific examples to illustrate his point, the city attorney noted that local government attorneys desire to practice preventive law. The provision of early legal counsel resolves legal issues, avoids costly and time-consuming litigation, and averts controversy. Local government attorneys need the ability to communicate frankly and confidentially with their clients orally as well as in writing.

The LGA's specific areas of concern with the proposed amendments include the restatement of the policy of FOIA, definitions of "personal working papers" and "public body," charges a public body may impose for providing records, the production of computer records, and the release of criminal records. This list is not exhaustive, and the LGA is prepared to present a balanced draft of specific provisions that might assist the joint subcommittee in its deliberations.

Law-enforcement Professionals

The joint subcommittee also heard testimony from the law-enforcement community concerning its response to the proposed amendments to the criminal records portion of FOIA. A Virginia Department of State Police captain provided the joint subcommittee with a written review of the proposed working draft of FOIA and a comparison of how the current law and the working draft treat criminal records and criminal investigations. Concern was expressed that the proposed amendments would have a serious negative impact on law-enforcement's ability to conduct criminal investigations and to protect officers, undercover operatives, and victims. Because the current language of FOIA concerning criminal records has been developed over many years, it accurately reflects the desired balance between the public's right to know and the effective conduct of criminal investigations.

Public Comment

Public comments received at the meeting included (i) the concern that electronic records are not being released as readily as paper records once were, (ii) the overreaching application of the working papers exemption, (iii) the lack of alternative procedures for enforcement of FOIA other than by civil suit, (iv) the need to make FOIA more citizen friendly and less "stacked" in favor of public bodies, and (v) the release of scholastic records.

At the conclusion of the meeting, Chairman Woodrum again renewed his request that interested parties meet informally to try to narrow the issues that divide them. The next meeting of the joint subcommittee has been scheduled for September 17, 1998, in Richmond. The subject of the next meeting will be access to meetings. Documents and other information related to this study are available on the joint subcommittee's web site at: http://dls.state.va.us/hjr187.htm.

The Honorable Clifton A. Woodrum, Chairman
Legislative Services contact: Maria J.K. Everett