Freedom of Information Advisory Council
March 29, 2004
Richmond
At its first quarterly
meeting of 2004, the council reviewed legislative changes to the Freedom
of Information Act (FOIA) made by the 2004 General Assembly, identified
topics for study, including bills referred to the council for further
examination, and developed a study plan for this year’s work.
HB 1357
House Bill 1357,
passed by the 2004 General Assembly, requires that the Joint Rules Committee
hold public hearings at least 60 days prior to the adoption of rules governing
public access to certain meetings excluded by the bill from the meeting
provisions of FOIA. A subcommittee of the council was appointed by the
chairman, public comment on the bill was invited, and the council’s
website was designated the primary vehicle for receiving public comment
and providing updates on the work of the subcommittee.
Legislative Update
Eighteen 2004 bills
amended FOIA, including the creation of seven new meetings and records
exemptions and the expansion of four existing meetings and records exemptions.
Several other bills did not amend FOIA directly, but addressed access-related
issues. Of note, both bills recommended by the council passed—SB
352, reorganizing the records exemptions, and SB 354, relating to records
and meeting exemptions for the Civil Commitment Review Committee. A complete
listing and description of FOIA and other access-related bills considered
by the 2004 Session of the General Assembly is available on the council’s
website.
Bills Referred to
the Council for Study
The 2004 General
Assembly referred the following three bills to the council for study:
- SB 182: FOIA and
GIS systems. Excludes from the mandatory disclosure requirements of
FOIA maps contained in a geographic information system that are developed
from a combination of high resolution technologies, including digital
orthophotography, digital terrain models or related ancillary proprietary
data produced by any local governing body or by the Virginia Geographic
Information Network (VGIN) division of the Virginia Information Technologies
Agency.
- HB 487: FOIA;
record exemption; owner/operators of private aircraft. Provides an exemption
for records of licensed public use airports containing information concerning
(i) the identity of the owners or operators of aircraft based at the
airport, including the owner’s or operator’s name, home address
and telephone number and (ii) the tail numbers and other identifying
information relating to the aircraft based at the airport from the mandatory
disclosure requirements of FOIA.
- HB 761: Virginia
State Bar; availability of membership lists. Clarifies that the provisions
of FOIA do not apply to requests for copies of the Virginia State Bar
membership lists. The bill does provide, however, that copies shall
be made available, upon request, to Virginia organizations that regularly
conduct continuing legal education programs in the Commonwealth and
that such lists shall be provided at a reasonable cost. Currently, copies
of this list are provided to legal aid societies and the Virginia Law
Foundation as well as continuing legal education providers on a cost
recovery basis.
The council discussed
the three bills and the issues each presented. With regard to SB 182,
the council, acknowledging a need for in-depth examination of the nature
of GIS records and access, appointed a subcommittee.
Staff advised the
council that HB 487 was introduced in response to a situation involving
a FOIA request made by a citizen who made complaints about the operation
of planes at a regional airport. The citizen eventually made certain threats
against the airport and subsequently filed his FOIA request.
The council was advised
of the existence of a website maintained by the Federal Aviation Administration
(FAA) which would allow any person to ascertain the name and address of
owners of aircraft as well as aircraft identifying information. The FAA
website provides this information in a variety of formats, including the
ability to search on a state-by-state basis or by a particular county
within a state.
The council agreed
that HB 487 raised a clear policy question of whether Virginia’s
FOIA should exempt records of licensed public-use airports in light of
the availability of such information on the FAA website. The full council
decided to review this issue.
House Bill 761 would
have exempted from FOIA the membership lists maintained by the Virginia
State Bar. The council had previously opined that membership lists maintained
by the Virginia State Bar were subject to the mandatory disclosure requirements
of FOIA. HB 761 was introduced to overturn the advisory opinion of the
council and to make it unequivocal that such lists are not subject to
FOIA. Given the background of this bill, the council felt that further
study was unnecessary.
Other Business
The council discussed
HB 358, which requires all state public bodies created in the executive
branch of state government and subject to FOIA to make available certain
information to the public upon request and to post such information on
the Internet, including: (i) a plain English explanation of the rights
of a requester under FOIA, the procedures to obtain public records from
the public body, and the responsibilities of the public body in complying
with FOIA; (ii) contact information for the person designated by the public
body to (a) assist a requester in making a request for records or (b)
respond to requests for public records; and (iii) any policy the public
body has concerning the type of public records it routinely withholds
from release as permitted by FOIA.
The bill requires
the council to assist state public bodies in the development and implementation
of this information, upon request. Council staff advised that they are
currently working on a model rights and responsibilities document to share
with state agencies and will offer the expertise of the council in customizing
the model document to meet the needs of each individual agency.
The council next
received a request from the Clerks’ offices of the Senate of Virginia
and the House of Delegates to change the required location for notice
of legislative meetings from in the Clerk’s office to the Internet.
Representatives of the Clerks’ offices stated that because of the
remote location of the Clerks’ offices, the public is not served
by posting notice there. They stated that notice of legislative meetings
would continue to be posted on the bulletin board in the lobby of the
General Assembly Building as required by law. Additionally, the representatives
requested the council to review the electronic meeting notice requirements
of FOIA. They stated that it was practically impossible to meet the requirement
to post notice 30 days in advance of any electronic meeting. A subcommittee
was appointed to study these requests.
The council discussed
the need to form a task force to review the issue of obsolete technology
nomenclature in FOIA and to make recommendations for change to the council.
At its last meeting, the council agreed that while no formal study was
necessary, a task force comprised of interested persons would be advisable
to review obsolete technology language contained in FOIA. The council
directed staff to act as facilitator/moderator of this task force. Participation
on task force will be open to all interested parties, including representatives
of the Virginia Information Technologies Agency (VITA). Interested persons
should contact staff of the FOIA Council.
Fredericksburg E-mail
Case
Staff reported that
on March 5, 2004, the Virginia Supreme Court issued an opinion concerning
FOIA (Beck v. Shelton, No. 030723), with a holding directly relevant
to all elected officials in Virginia, from members of the General Assembly
to members of local school boards.
Beck had primarily
drawn interest because it is the first authoritative statement of law
in Virginia as to whether use of electronic mail (“e-mail”)
by public officials could constitute a meeting under FOIA. Beck
also examines broader issues as to the applicability of FOIA to members-elect
of a public body and the definition of a meeting.
The Court held that
FOIA does not apply to members-elect of a public body; that, generally,
use of e-mail by three or more members of a public body to discuss public
business is not a meeting; and that the gathering of three members of
a public body at a citizen-organized meeting did not violate FOIA. Staff
advised that it has prepared an issue brief of the case, which is available
on the council’s website.
Public Comment
As is its custom
at each meeting, the council received public comment. On the issue of
the application of FOIA to meetings of the General Assembly (HB 1357),
the council was provided the results of research conducted by a citizen
on legislative rules of other states as well as such states’ relevant
constitutional provisions on this issue. The Virginia Press Association
and the Virginia Association of Broadcasters expressed their interest
in participating in the study and offered some issues for consideration
in the conduct of the council’s study of HB 1357, including the differentiation
between the various types and functions of General Assembly caucuses,
the conduct of meetings of the General Assembly while in session versus
meetings conducted during the interim, and whether the subject matter
under discussion should be controlling in determining public access. The
Virginia Coalition for Open Government (VCOG) expressed its opinion that
legislative exemptions should continue to be placed within FOIA and not
in House or Senate procedural rules. On the issue of SB 182, access to
GIS maps, VCOG stated that it is opposed to “add-on” fees for
high resolution GIS maps. The City of Virginia Beach provided background
information on GIS maps and expressed willingness to assist in the study
of SB 182.
Chairman:
The Hon. R. Edward
Houck
For information,
contact:
Maria J.K. Everett
Executive Director
Website:
http://dls.state.va.us/foiacouncil.htm
Division
of Legislative Services > Legislative
Record > 2004
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