HJR 501

Joint Subcommittee to Study the Virginia Freedom of Information Act

June 2, 1999, Richmond

Beginning its second year of study, the joint subcommittee held its first meeting of the 1999 interim to review the various state freedom of information or "sunshine office" models. In addition, the joint subcommittee developed a tentative work plan, including identifying and prioritizing issues and planning future meetings.

In Virginia, no agency has implementation or enforcement authority relative to the open-meeting or open-record requirements under the Freedom of Information Act (FOIA). While Virginia law does provide for public bodies to make reasonable efforts to reach agreement with requestors regarding public records, there is no statutory provision mandating alternative dispute resolution, nor does there exist a statewide informal or voluntary program to resolve disputes that may arise in the day-to-day operation of public bodies.

The creation of a "sunshine office"–an agency, however structured or denominated, responsible for the enforcement or implementation of public access laws–is one issue that was carried over by the joint subcommittee for consideration during the second year of the study. Many states have created such an office, with the models varying depending on the state. The state offices selected for review were Indiana, Maryland, Florida, Kentucky, New York, Connecticut, Georgia, Washington, Hawaii, and North Carolina.

"Sunshine" Offices–State Models

Indiana

Agency: Public Access Counselor. Statutory office; attorney appointed by the Governor for four-year term, but may be removed for cause. Responsible for open records and open meetings laws, or any other state statute or rule governing access to public meetings or public records.

Public Access Counselor's powers and duties:

• Establish and administer a program to train public officials and educate the public on their rights and the responsibilities of public agencies under public access laws. May be contracted out.
• Conduct research.
• Prepare interpretive and educational materials and programs in cooperation with the Office of the Attorney General.
• Distribute to newly elected/appointed public officials the public access laws and educational materials concerning the public access laws.
• Respond to informal inquiries made by the public and public bodies by telephone, in writing, in person, by fax, or by electronic mail concerning the public access laws.
• Issue advisory opinions to interpret the public access laws upon request of a person or public body within 30 days of request. No opinion, however, may be issued where lawsuit has been filed pursuant to public access laws.
• Make legislative recommendations to the General Assembly to improve public access.
• Submit an annual report to the General Assembly.

There is no requirement in Indiana that an aggrieved party exhaust administrative remedies before pursuing a lawsuit under public access laws. Currently, the Indiana Attorney General, in cooperation with the Hoosier State Press Association, publishes The Open Door Law and the Access to Public Records Act, which includes an overview of both laws, answers to some commonly asked questions, and information about contacting the Public Access Counselor.

Maryland

Agency: The Open Meetings Compliance Board. The board is advisory and limited to open meetings issues only.

Open Meetings Compliance Board:

• Composed of 3 members, appointed by the Governor and confirmed by the Senate; at least one member must be an attorney; members serve three-year staggered terms.
• The Office of the Attorney General provides staff for the bboard.
• Powers and duties of the board include:
  • Receive, review, and resolve complaints.
  • Issue written advisory opinions on whether or not a violation has occurred.
  • Evaluate how well public bodies comply with the Open Meetings Law and recommend improvements in the law to the legislature;.
  • Work with the Office of the Attorney General and other interested groups to develop and conduct educational programs for staff and attorneys representing public bodies.
  • Hold informal conferences to resolve disputes prior to issuing a written opinion, which is advisory only. The board does not have the power to compel any specific actions by a public body.

A person may bypass the board and initiate court action.

Florida

Agency: The Office of the Attorney General operates an informal and voluntary Public Mediation Program for open meetings and open records disputes.

Public Mediation Program:

• The Office of the Attorney General also operates an informal and voluntary public mediation program created within the office by statute.
• Duties of the program include:
  • Recommend needed legislation.
  • Assist Department of State in preparation of training seminars.
  • Report to the legislature the number and source of inquiries, the number and types of disputes relative to electronically stored public records, the number of disputes mediated, and any legislation necessary to improve the mediation program.

The Attorney General's Office produces and routinely updates a manual which serves as a reference guide to judicial decisions, statutes, and advisory Attorney General Opinions relating to the Public Records Law and the Sunshine Law. It is available at no cost via the Internet. Hard copies are printed by the First Amendment Foundation and sold to recover printing costs.

Under the Open Government Sunset Review Act of 1995, new exemptions or substantial amendment of existing exemptions for both laws are repealed after 5 years unless the legislature takes action to reenact the exemption.

Kentucky

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.

Attorney General:

• Any person who believes a public agency has violated the Open Meetings Act and any person who has been denied a request for public records may appeal to the Attorney General.
• The Attorney General must issue a decision within 60 days, stating whether the agency has violated either of the Acts.
• Both the complaining party and the agency may appeal the decision; however if no appeal is filed within thirty days, the decision has the force and effect of law.
• The Attorney General acts as an impartial tribunal in open records and open meetings appeals.

New York

Agency: The Advisory Committee on Open Government, established within the New York Department of State, is responsible for overseeing the implementation of the Freedom of Information Law and the Open Meeting Law.

Advisory Committee on Open Government:

• Composed of 11 members, five from government and six from the public. Of the six public members at least two must be or have been representatives of the news media.
• Duties of the Advisory Committee include:
  • Furnishing written and oral advice to agencies, the public and the news media.
  • Issuing regulations.
  • Mediating disputes.
  • Submitting an annual report to the Governor and the legislature describing the committee's experience under each of the statutes and recommendations for improving them.
• The Committee produces a pamphlet on the Freedom of Information Law, the Open Meetings Law and the Personal Privacy Protection Law.

Connecticut

Agency: Freedom of Information Commission.

Freedom of Information Commission:

• Composed of five members, appointed by the Governor with the advice and consent of either house of the General Assembly; no more than three members of the same political party; members serve four-year staggered terms.
• Responsible for the investigation and review all alleged violations of the FOIA.
• Commission powers and duties:
  • Issue final orders regarding the act.
  • Declare null and void any action taken at any meeting which a person was denied the right to attend.
  • Require the production or copying of any public record.
  • Render advisory opinions of general applicability under the FOIA.
  • Required by statute to provide annual training for public agencies.
  • Provides for informal settlement of disputes through an ombudsman program.
• Appeals may be taken from final orders of the commission.
• The commission produces a citizens guide to the FOIA and conducts over 100 workshops and training programs annually.

Georgia

Agency: None.

Legislation effective July 1, 1998, authorizes the Attorney General to bring enforcement actions, either civilly or criminally, to enforce compliance with the open meetings and open records laws.

Washington

Agency: In all public records cases, except denials by local government agencies, the requestor may ask the Office of the Attorney General to provide a written opinion on whether the record is exempt.

Public Records Act:

• When a state agency denies a requesting party the opportunity to inspect or copy a record, the party may request a review by the Attorney General, who must provide a written opinion on whether the record is exempt (this right of review does not extend to denials by local agencies).
• The Attorney General's determination is not legally binding on the agency or the requester.

The Office of the Attorney General, working with Allied Daily Newspapers and local government organizations, produces a citizens guide which gives a brief explanation of the laws. In addition, the office also produces a comprehensive manual intended to clarify provisions of the law and prevent future disagreements.

Hawaii

Agency: The Office of Information Practices (OIP) located in the Office of the Lieutenant Governor.

Office of Information Practices:

• Legislation, effective July 1, 1998, established a temporary Office of Information Practices, administratively attached to the Office of the Lieutenant Governor, to bring together the administration of open meetings and open records requirements under one agency.
• Duties of the office include:
  • Receive and resolve complaints under the UIPA and Open Meetings Law.
  • Provide advisory opinions to the public and to government agencies.
  • Act as an appeals agency to mediate any disputes over access to government records.
  • Adopt rules to implement the UIPA and the open meetings law.
  • Educate the public and government agencies about the UIPA and the open meetings law.
  • Develop a uniform public records report describing each set of records every government agency routinely uses or maintains and coordinate completion by all government agencies.
  • Report to the Governor and legislature each year on its activities and recommend legislative changes.
• Opinions and rulings issued by the OIP are admissible in any circuit court action brought by any person aggrieved by an agency's denial of access to public records.

Open Records:

• Alternative method to appeal the denial of a public record is provided through the OIP prior to seeking judicial enforcement.
• The OIP does not have the authority to compel the agency to disclose records.

North Carolina

Agency: The Sunshine Office operated by the Office of the Attorney General.

Sunshine Office:

• Established in the Citizens Rights Section of the Attorney General's Office to assist the public and government agencies to understand and apply the public records and open meetings laws.
• The Sunshine Office also mediates disputes between the public and government agencies involving access to public documents and meetings.
• Participation in mediation is voluntary and the office has no enforcement authority.

Discussion

By consensus, the joint subcommittee agreed that if a sunshine office were to be established in Virginia it would be preferable to create such an office as an independent agency, which would not be subject to direct political pressure as it serves Virginia's citizens and state and local public bodies. Although four of the 10 state sunshine office models reviewed were affiliated with that state's Attorney General's office, this model was not favored by the joint subcommittee because of the perception of a conflict of interest. In Virginia, the Office of the Attorney General is responsible for the representation of state agencies but may be required, if assigned a sunshine office role, to rule against those same state agencies in FOIA disputes. It was made clear that the issues weighing against placement of a sunshine office in the Office of the Attorney General were of a structural nature and not an operational one.

Support for the further examination of the creation of a sunshine office was expressed by the Coalition for Open Government, the Virginia Association of Broadcasters, the Virginia Municipal League, and the Virginia Press Association.

Other Study Issues

Other issues identified for further consideration during the second year of study include:

• Electronic records and communications—are they public records and/or meetings?
• Reexamination of the many record exemptions for trade secrets and other proprietary information.
• Treatment of the State Corporation Commission—is it a public body under FOIA?
• Inclusion of foundations that support public institutions of higher education and other public-private partnerships as "public bodies" under FOIA.
• The interface between FOIA and the Virginia Public Records and Privacy Protection Acts.

The next meeting of the joint subcommittee, to discuss an appropriate sunshine office model in Virginia, has been tentatively scheduled for late June in Richmond.

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

THE RECORD

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