Freedom of Information Advisory Council
The Freedom of Information
Advisory Council began its meeting by receiving progress reports from
its two subcommittees created to study (i) the Virginia Freedom of Information
Act (FOIA) exclusion for the Sexually Violent Predators Commitment Review
Committee and (ii) a possible reorganization of § 2.2-3705 of the
Code of Virginia (the current FOIA record exemption section).
Sexually Violent Predators
The civil commitment
subcommittee reported that it examined the new exclusion found at subdivision
A 5 of
§ 2.2-3703, which removes the Sexually Violent Predators Commitment
Review Committee from the requirements of FOIA. With a few exceptions,
most public bodies are not wholly excluded from the requirements of FOIA.
Instead, most public bodies must exercise narrowly tailored records and
meetings exemptions to withhold records and to close meetings, following
specific procedures in FOIA.
Records and meetings
of government agencies are presumed to be open, and an agency must justify
which records and meetings require protection from disclosure. The public
has an interest and a concern in following the actions of the committee,
and the committee should have to follow the same procedures as other public
bodies for exempting records and meetings.
To better understand
what kind of information would need to be protected by exemptions, subcommittee
members discussed with Department of Corrections representatives the process
by which a sexually violent predator is reviewed by the committee, which
consists of seven members. A risk assessment is performed within 10 months
of release on inmates who have been convicted of one of four specified
sexually violent crimes. Those inmates who receive a certain score on
the risk assessment are presented to the committee for review. The Department
of Corrections contracts with an outside evaluator to perform in-depth
mental health assessment as to whether a particular individual is likely
to become a repeat offender.
Based on this assessment,
the committee makes a recommendation to the Office of the Attorney General
to release the individual, civilly commit the individual, or to establish
a conditional release. The Attorney General reviews the recommendation
and decides how to proceed. If the Attorney General decides to pursue
a conditional release or civil commitment, the case is filed with the
court system. At that point, the court case becomes a matter of public
It was recognized
that the in-depth mental health assessment should be protected from public
disclosure. However, once a recommendation is made to the Attorney General,
the names of the individuals identified as potential sexual predators
and the basis for the recommendation made should become public. The Office
of the Attorney General had indicated that it is essential to protect
victim-identifying information from public disclosure. The subcommittee
members and meeting participants generally concurred that these two elements
should be protected by an exemption.
the Department of Corrections indicated that there was some concern over
the votes of the members of the committee being released. The concern
was based on both the safety of the members and concern that the committee
members may tend to vote in favor of commitment to avoid public backlash.
Other meeting participants, however, noted that oversight of the committee
would be limited if the votes were not disclosed, pointing out that juries
decide cases every day and their actions are subject to public scrutiny.
voted 2-0 to recommend a draft to the FOIA Council that would protect
the mental health assessments of individuals subject to the committees
review and other records identifying their victims from public disclosure,
and to protect discussions of those records in a public meeting.
Reorganization of § 2.2-3705
studying the possible reorganization of the records exemptions found at
§ 2.2-3705 met on August 27, 2003. The focus of the subcommittee
was to determine whether a reorganization of § 2.2-3705 would be
advisable to reduce the size of bills before the General Assembly that
contain a FOIA exemption and generally to make the exemption section more
On its own initiative,
staff met with interested parties to receive comment and discuss possible
categories to use to reorganize § 2.2-3705. A consensus draft was
prepared that incorporated the suggestions made and was presented to the
subcommittee at its first meeting. The subcommittee, satisfied that the
draft reflected the consensus of divergent interests, voted 2-0 to accept
the draft and to present it to the FOIA Council for deliberation. The
draft would repeal § 2.2-3705 and create eight new sections grouping
the exemptions by general subject area as follows:
- § 2.2-3705.1.
Exclusions to application of chapter; exclusions of general application
to public bodies (written legal advice, contract negotiations, etc.
shared by all public bodies).
- § 2.2-3705.2.
Exclusions to application of chapter; public safety records (terrorism,
school safety audits, victims of crime, etc.).
- § 2.2-3705.3.
Exclusions to application of chapter; administrative investigations
records (investigations related to license applications, fraud, waste
and abuse, risk management claims, EEOC, etc.).
- § 2.2-3705.4.
Exclusions to application of chapter; educational records and certain
records of educational institutions (scholastic records, records of
teaching hospitals, etc.).
- § 2.2-3705.5.
Exclusions to application of chapter; health and social services records
(medical and mental health records, records related to recipients of
social services, etc.).
- § 2.2-3705.6.
Exclusions to application of chapter; proprietary records and trade
- § 2.2-3705.7.
Exclusions to application of chapter; records of specific public bodies
and certain other limited exemptions.
- § 2.2-3705.8.
Limitation on record exclusions (salary information about public employees
is open and access to consultants reports).
After review of both
drafts, the council, by consensus, decided to keep the drafts as agenda
items for its next meeting to allow further reflection by council members
and additional public comment. It was noted that the proposed reorganization
of § 2.2-3705 had been presented to the Code Commission at its August
meeting. The council also directed staff to publicize the drafts, including
posting them on the councils website with an invitation to interested
parties to submit comment.
E-Mail and FOIA
An expert from the
Library of Virginia educated the council on the general requirements of
the Virginia Public Records Act and the handling of e-mail. He noted that
e-mail is no more than an electronic envelope. It is the content of the
e-mail that controls whether it must be retained and not the medium in
which it is transmitted. E-mail creates a new burden on government for
record keeping and accordingly government must adapt to this now-prevalent
mode of communication. In the 1970s, e-mail began as an analog to the
phone message, but today it is much more. E-mails fitting the definition
of a public record under the Virginia Public Records Act should be stored
locally by the sender in an electronic folder appropriately named or,
alternatively, copied to the administrator of the public body for retention.
In this way, the disclosure requirements of FOIA can be easily managed.
Concern was expressed
by members of the FOIA Council that the record retention requirements
on local government officials are particularly onerous in light of the
fact that local elected officials serve their communities part time, receive
a small stipend, and use their personal resources (home computers, etc.)
to conduct public business. The convergence of FOIA and the Virginia Public
Records Act has created a significant burden on local officials who are
expected to be record managers in addition to their other public duties.
It was felt that this burden would have a chilling effect on well-intentioned
citizens who are trying to help out their communities by seeking elective
On the other hand,
it was noted that record keeping is part of governing and that record-keeping
requirements truly operate for the benefit of the citizen. In response,
the Librarian of Virginia stated that his staff is aware that the Virginia
Public Records Act, enacted more than 30 years ago, is due for reexamination,
especially in light of issues raised by electronic communications. He
indicated that the subcommittee created pursuant to HJR 159 (2003) has
been asked to make a recommendation concerning a review of the Virginia
Public Records Act and suggested that this subcommittee would be an appropriate
place for those wishing to comment.
Status of Fredericksburg E-Mail
Staff briefed the
council on the status of Fredericksburg e-mail case. The Supreme Court
of Virginia granted an appeal to the defendants (Beck v. Shelton, Supreme
Court Case Number 030723). Defendants appealed the circuit courts
decision that the use of e-mail to reach a consensus among three or more
members of a public body constituted a meeting under FOIA. The plaintiffs
in the case have also cross-appealed the decision that certain other uses
of e-mail by three or more members of a public body was not a meeting
under FOIA. All of the appeal briefs, including the response and reply,
are due by the end of October. At that point, the court will set a date
to hear oral arguments of the case. The arguments will not likely take
place until early 2004, with a decision not likely until spring of 2004.
The Council heard
from the Superintendent of Recreation for Frederick County Parks and Recreation
concerning the potential danger to children that could result from record
requests made to the department under FOIA. Specifically, their records
contain personal information about children enrolled in their camp and
sports programs. Such personal information includes a childs name,
address, birth date, phone number, parents name and place of work,
medical conditions if any, and custodial arrangements. It was noted that
on prior advice from the council the department could not properly invoke
the scholastic record exemption because it is not an educational institution.
The council agreed to look into the issues raised at its next meeting.
Council member David
Anderson stated that he was aware that the Chief Medical Examiner was
pursuing the amendment of the Code of Virginia, including FOIA, to limit
access to records of that office. The council directed staff to contact
the medical examiner and report back to the council at its next meeting.
Staff advised the
council that it projected that the 2003 FOIA Workshops being held in September
would reach approximately 650 registrants statewide. Additionally, staff
presented the latest statistics of the services rendered by council. Since
its meeting in June through September 12, 2003, the council has answered
303 inquiries, including 10 written opinions. Three written opinions were
provided to government and seven to citizens. Staff provided 148 informal
responses (via phone or email) to government, 78 to citizens and 67 to
The next meeting of the council has been set for Monday, December 1, 2003,
at 2:00 p.m. in Richmond.
The Hon. R. Edward
Maria J.K. Everett
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