HJR 187

Joint Subcommittee to Study the Virginia Freedom of Information Act

October 14, 1998, Richmond

Convening its fifth meeting of the interim, the joint subcommittee heard from representatives of the Virginia Tech Foundation, the University of Virginia, and Virginia Commonwealth University concerning the impact the proposed amendments to FOIA would have on public institutions of higher education. Principally, they discussed the impact of including private, albeit university-controlled, foundations in the definition of "public body" under FOIA, resulting in increased public access to records and meetings of these foundations.

Universities' Position

The three universities represented at the meeting concurred that, in their opinion, increased public access to foundation records would negatively impact private contributions because some donors are unwilling to make charitable contributions to state agencies. Concern was also raised that personal financial information about individual contributors would be disclosed. Because these contributions are so important to universities in maintaining a margin of excellence, their diminution would substantially affect the quality of public education in Virginia and increase demands on tuition and, ultimately, on Virginia's taxpayers. It was pointed out that the foundations file federal tax reports (Form 990), which include information such as the names and compensation of the five highest paid employees of the foundation and detailed accounts of the sources and uses of foundation funds. Another concern expressed was that including university-related foundations in the definition of "public body" would lead to the creation of "maverick" or unaffiliated foundations that would not be controlled by a university's board of visitors.

VPA Response

In rebuttal, the Virginia Press Association (VPA) averred that university-related foundations are encroaching into the realm of the operation of public universities. Foundations exist solely to support specific universities and are under the strict control of the board of visitors of that university. As a result, the line between them is increasingly difficult to draw. The big issue for the VPA was not individual contributors but that university-related foundations increasingly are acting as agencies of the Commonwealth.

Other Concerns

Virginia Commonwealth University and the University of Virginia were also opposed to the elimination of their respective records exemption for the operation of their medical centers. As proposed, the amendment to FOIA would combine records of these medical centers and other agencies into a single exemption for trade secrets. Even though the proposed "trade secret" exemption is based on the definition of "trade secret" found in the Uniform Trade Secrets Act ( 59.1-336 et seq.), it does not include protection for a medical center's own proprietary data and strategic plans or propriety information about their joint venturers and other business partners.

Also of concern to these universities is the proposed amendment to the "working papers" exemption available to the university presidents, as well as the Governor, Lieutenant Governor, members of the General Assembly and chief executive officers of local governing bodies. The joint subcommittee heard that all of these high-level public officials share a common need to evaluate, in confidence, policies, proposals, and third party communications. While the universities agree that a clearer standard may be needed to the rather broad "working papers" exemption, they believe that the proposed amendments are too restrictive and are not in the public's interest.

Work Group Progress Report

Throughout the course of this study, all interested parties have been repeatedly encouraged by the chairman to meet informally to resolve the issues that divide them. Concluding two meetings with the promise of more, the informal "work group" has reached consensus on several specific areas of the proposed redraft. A report of that consensus was made by staff to the joint subcommittee and generally included agreement on the policy statement for FOIA, the definition of "public body," deferring consideration of university-related foundations, charges for search time and supplying records, requiring a deposit for large requests of records, and the handling of electronic records.

Public Comment

During the public comment portion of the meeting, the joint subcommittee heard from a representative of the Portsmouth Redevelopment and Housing Authority expressing concern that the proposed elimination of the records exemption for redevelopment and housing authorities would result in the release of personal information (name, date of birth, social security number, bank accounts, etc.) about individuals making application for or receiving housing assistance. To subject these persons to such an invasion of privacy, simply on the basis of their need for housing assistance, is unfair and unjustified.

The Virginia Economic Development Partnership Authority was represented at the meeting and commented that the proposed consolidation of several records exemptions into a single "trade secrets" exemption would not fully cover the operations of the authority or local economic development organizations.

Next Meeting

The next meeting of the joint subcommittee has been rescheduled from Wednesday, November 4, 1998, to Wednesday, November 11, 1998, at 1:30 p.m. in Richmond. This meeting will be a work session for the joint subcommittee, which will begin to craft amendments to FOIA. For access to documents and other information related to this study, contact 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