| Freedom of Information Advisory 
        CouncilJune 12, 2002Richmond
Recap of 2002 LegislationCouncil staff provided a recap 
        of Freedom of Information Act (FOIA) and other related access bills considered 
        by the 2002 Session of the General Assembly. Of particular note was the 
        enactment of all FOIA bills recommended by the council, including HB 173, 
        establishing the council as a permanent legislative agency; HB 700, creating 
        both a record and meeting exemption relating to terrorism for public bodies; 
        HB 731, authorizing the withholding of certain citizen e-mail addresses 
        and other information from release; and HB 729, clarifying the application 
        of FOIA to constitutional officers. A complete listing and description 
        of FOIA and other related access bills considered by the 2002 Session 
        of the General Assembly is available on the council’s website. Bill Referred to CouncilThe House Committee on General 
        Laws carried over HB 900 and referred it to the council for study. HB 
        900 would authorize any public body subject to FOIA to petition the circuit 
        court for a protective order relieving it, in whole or in part, of its 
        obligations to produce requested records where the request is unreasonable, 
        not made in good faith, or motivated primarily by an intent to abuse, 
        harass, or intimidate the public body. The bill also allows the court 
        to require the requester to pay the reasonable attorney’s fees incurred 
        by the public body in obtaining the protective order. The council appointed 
        a subcommittee to study this issue and report its progress at the next 
        council meeting. FOIA and Contract NegotiationsThe council discussed the apparent 
        conflict between the Virginia Public Procurement Act (VPPA) and FOIA as 
        it relates to the confidentiality of procurement transactions and the 
        open meeting provisions of FOIA. A related issue discussed was the subject 
        of a recent council advisory opinion relating to the protection of records 
        and other documents compiled during contract negotiations. In cases not 
        involving the VPPA, the opinion noted that currently no record exemption 
        exists generally for a public body to withhold release of these records 
        even though the bargaining position of the public body may be adversely 
        affected. Because these issues have been the subjects of several inquiries, 
        the council appointed a subcommittee to examine the relevant statutes 
        and make a recommendation for resolution. FOIA and Political and Other CaucusesThe council began its deliberations 
        on the treatment of political and other caucuses of the General Assembly 
        under FOIA. In response to recent news articles concerning meetings held 
        by political caucuses of the General Assembly, staff briefed the council 
        on other states’ approaches to this issue and the need for clarity in 
        Virginia’s law. Political caucuses are not public bodies as defined by 
        FOIA because they are not organizations within the Commonwealth supported 
        wholly or principally by public funds. The issue becomes less clear, however, 
        when party caucuses of the General Assembly discuss legislation that is 
        before the General Assembly. In addition to party caucuses, 
        there are also regional and other caucuses established in the General 
        Assembly. Further, it was pointed out that if a rule were established 
        concerning caucuses of the General Assembly, should it also apply to other 
        public bodies, including local governments? Due to the complexity of these 
        issues, the council directed that they continue to be an agenda item for 
        future meetings. The council expressed a desire to hear from the various 
        caucuses and the public during the public comment portion of future meetings 
        and directed staff to contact the various caucuses established in the 
        General Assembly to invite their comment. In a related matter, the council 
        unanimously agreed to formalize its policy not to render advisory opinions 
        when a matter is in litigation. Additionally, the council added a provision 
        to this policy that should staff be subpoenaed solely on issues of law 
        involving FOIA, staff is authorized to file a motion to quash any such 
        subpoena. Virginia’s Laws Highly RatedStaff advised the council that 
        Virginia’s open records laws were rated among the five best in the nation 
        by the Better Government Association of Illinois. The rating was based 
        on procedural criteria such as (i) the amount of time a public agency 
        or department has to respond to a citizen’s request for a public document; 
        (ii) the process a citizen must go through to appeal the decision of an 
        agency to deny the request for the public record; and (iii) whether an 
        appeal is expedited when it reaches the court system. The penalty criteria 
        weigh (a) whether the complaining party, upon receiving a favorable judgment 
        in court, is awarded attorney’s fees and costs; and (b) whether the agency 
        that has wrongfully withheld a record is subject to any civil or criminal 
        punishment. FOIA Workshops and Council ServicesStaff advised the council that 
        the annual statewide FOIA workshops offered by the council were being 
        scheduled for early September at seven locations: Big Stone Gap, Roanoke, 
        Harrisonburg, Loudoun County, Prince William County, Richmond, and Virginia 
        Beach. Staff apprised the council of 
        the latest statistics on the services rendered. Since July 2000, the council 
        has responded to a total of 1,689 requests for opinions, both written 
        and informal (i.e., telephone or e-mail). Of that number, the council 
        has issued 75 written advisory opinions. Citizens continue to make the 
        most requests for assistance, followed by state and local government officials, 
        and the media. Public CommentThe council received a copy of 
        draft guidelines for public bodies to use in calculating their actual 
        costs for producing documents under FOIA. The draft guidelines were offered 
        by a citizen who has invested time and energy in trying to understand 
        why actual costs vary from agency to agency and from locality to locality. 
        A suggestion that public bodies conduct a cost analysis to ensure that 
        charges made for document production reflect the actual cost to the public 
        body was included in the draft guidelines. The draft guidelines also offered 
        examples of ways public bodies could keep costs to a requester low, including 
        enlisting the help of volunteers, keeping indices of records up-to-date, 
        and making routinely requested records more easily available. Additionally, a representative 
        of the Virginia Coalition for Open Government commended the General Assembly 
        for making the council a permanent legislative agency and encouraged the 
        council to keep informal mediation of FOIA disputes a priority. The council set its next meeting 
        for Monday, August 19, 2002, at 2:00 p.m. in House Room D of the General 
        Assembly Building. Chairman: The Hon. R. Edward 
        Houck For information, 
        contact: Maria J. K. EverettExecutive Director
  Website: 
        http://dls.state.va.us/foiacouncil.htm  THE 
        RECORD   
        
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