Freedom of Information Advisory Council
March 23, 2005
The Freedom of Information
Advisory Council (the Council) held its first quarterly meeting of 2005.
The Council reviewed legislative changes to the Freedom of Information
Act (FOIA) made by the 2005 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.
The 2005 Session
of the General Assembly passed a total of 12 bills amending FOIA. SB 711,
recommended by the Council, amended the requirements for electronic meetings.
SB 711 was incorporated into the nearly-identical bill, SB 1196, recommended
by the Joint Commission on Technology and Science (JCOTS). SB711/SB 1196
passed as a joint recommendation of the Council and JCOTS.
Of the 12 bills,
six bills created new record exemptions to FOIA: HB 2399 added an exemption
for 911 or E-911 subscriber data collected by local governing bodies;
HB 2729 added an exemption for records of active investigations conducted
by the Department of Criminal Justice Services of certain of its licensees;
HB 2404 added an exemption for proprietary records of local wireless service
authorities; SB 959 added an exemption for proprietary records of local
public bodies providing telecommunications and cable television services;
HB 2032 added an exemption for the Statewide Alert Network program records;
and SB 1157 added an exemption for records of the Judicial Inquiry and
Review Commission. Two of the six bills, HB 2404 and SB 959, also created
new closed meeting exemptions corresponding to their respective records
In addition to SB
1196/SB 711, four bills amended current exemptions under FOIA: HB 2516
and SB 1109, which are identical, made technical amendments to existing
provisions concerning minors' health records; SB 1023 made a technical
amendment to the existing provision concerning involuntary admission records
as part of the re-codification of Title 37.1 as Title 37.2; and SB 752
extended the sunset provision for electronic meetings held by the Board
of Visitors of the University of Virginia.
One other bill, HB
2930, addressed voting security matters involving the State Board of Elections
and local electoral boards and also created a new closed meeting exemption
within FOIA. In amending Title 24.2 (election laws), HB 2930 also exempted
certain records from disclosure under FOIA and provided that "site
visits" are not "meetings" subject to FOIA.
A complete listing
and description of FOIA and other related access bills considered by the
2005 Session of the General Assembly is available on the Council's website.
to the Council for Study
Three bills were
referred to the Council for study by the 2005 Session of the General Assembly.
The Council discussed the issues raised by each bill.
- HB 1733 (Cosgrove);
Freedom of Information Act; record exemption for certain email addresses.
Revises a current exemption for personal information, including electronic
mail addresses, to allow the withholding of such information unless
the subject of the record waives the protections afforded by the exemption.
Currently, the presumption is that the record is open unless the subject
of the record indicates that the record should not be released.
- HB 2672 (Plum);
Virginia Freedom of Information Act; meetings exemption. Amends
an existing meeting exemption to allow for closed meetings to discuss
records exempt from public disclosure relating to the Public-Private
Education Facilities and Infrastructure Act (PPEA).
- HB 2760 (Reese);
Freedom of Information Act (FOIA); electronic meetings. Allows local
public bodies to conduct meetings under FOIA through electronic communication
means (telephone or audio/visual). Currently, only state public bodies
may conduct meetings in this manner.
The Council was
advised that Delegate Plum had requested a representative of the Virginia
Information Technologies Agency (VITA) to present HB 2672 on his behalf.
The bill was introduced to address a need brought to Delegate Plum's
attention by the Information Technology Investment Board, which wanted
to meet in closed session to discuss confidential proprietary records
submitted to VITA as part of a procurement proposal under the Public-Private
Educational and Infrastructure Act (PPEA). Inclusion of such discussions
under the PPEA would expand the current closed meeting exemption now
available to public bodies under the Public-Private Transportation
Press Association (VPA) stated that it had no problem with the bill
itself, but was concerned how the current record exemption for PPEA
and PPTA proposals was used to
withhold more records than are authorized under the exemption. This
concern was also shared by the Virginia Coalition for Open Government
and the Associated General Contractors of Virginia.
The Council agreed
to appoint a subcommittee consisting of Council members Axselle, Edwards,
and Hallock to examine the issues identified. It was noted that a
work group would be formed to revise the model guidelines for the
PPEA, SB 1107 (Stosch). The Council directed staff to monitor the
SB 1107 work group and report to the Council subcommittee on HB 2672.
The Council appointed
a subcommittee consisting of Council members Edwards, Fifer, Miller
and Wiley to discuss the appropriateness of expanding authorization
for the conduct of electronic meetings to local regional authorities
and other local public bodies.
The Council deferred
further consideration of HB 1733 until its next meeting.
Other Issues for
the Council's Consideration
Request: "Records Do Not Exist"
Staff raised several
issues for the Council's consideration. The first issue concerned whether
a mandated fifth response to a FOIA request--the requested records do
not exist--was needed. Currently under FOIA, a public body is under
no obligation to create records that do not exist in response to a specific
request nor is a public body required to respond to a requester if the
requested record does not exist. The lack of a required response in
these instances leads to confusion and exacerbates any feelings of distrust.
In a written opinion (AO-16-04), the Council previously opined that
a public body should make this written response where applicable in
order to avoid confusion and frustration on the part of the requester.
The Council directed staff to examine this issue more fully and present
a proposal for the Council's consideration.
Request: Licensing Agreements with VITA
The next issue
discussed was the production of public records under FOIA versus the
production of public records under licensing agreements with VITA. When
the Virginia Information Providers Network Authority (VIPNET) was originally
created, the act included language that clarified the responsibilities
of public bodies for the production of records made under FOIA and those
"value added" records produced through VIPNET and subject
to a licensing agreement with the requester. In 2003, when VITA was
created, the referenced language was repealed because of the incorporation
of VIPNET into VITA. During the 2005 Session, SB 1027 dissolved VIPNET
as a separate division within VITA.
Reinstating the original language relating to the responsibilities of
public bodies to produce public records may help eliminate confusion
and clarify obligations for the production of records. Staff noted that
language added to
SB 1027 may already speak to the issue of production of public records
in response to a FOIA request. The relevant language in SB 1027 states
that "Nothing . . . shall be construed to prevent access to public
records pursuant to Virginia Freedom of Information Act . . . under
the terms and conditions set forth in § 2.2-3704."
The Council agreed that clarification of the obligations of public bodies
in responding to FOIA requests in light of any licensing agreements
with VITA would be advisable. Staff was directed to work with VITA on
preparing a guidance document for dissemination to the various state
and local public bodies.
Request: charges for Databases
The Council next
discussed charges for databases under FOIA (subsection J of § 2.2-3704)
and other laws and examined the apparent disparate provisions in the
Code of Virginia. (e.g., § 2.2-4008). Specifically, subsection
J of § 2.2-3704 provides "Every public body of state government
shall compile, and annually update, an index of computer databases that
contains at a minimum those databases created by them on or after July
1, 1997. . . . Such index shall be a public record and shall include,
at a minimum, the following information with respect to each database...
a schedule of fees for the production of copies in each available
form." Further, § 2.2-4008,
relating to availability of guidance documents under the Administrative
Process Act, provides "
Each agency shall also (i) maintain
a complete list of all of its currently operative guidance documents
and make the list available for public inspection . . . and (iii) upon
request, make copies of such lists or guidance documents available without
charge, at cost, or on payment of a reasonable fee." (emphasis
Subsection F of
§ 2.2-3704 of FOIA requires that a public body may make reasonable
charges not to exceed its actual cost incurred in accessing, duplicating,
supplying, or searching for the requested records. These variations
in language are confusing to both public bodies and requesters alike
in what is an allowable charge.
Staff stated that
it has received many inquiries concerning allowable charges for databases
and suggested that one solution may be to specifically reference subsection
F of § 2.2-3704, which clarifies the allowable charges for these
databases and guidance documents. The Council agreed that charges for
the production of public records, including databases, should be governed
by FOIA and addressed uniformly in the Code of Virginia.
The Council asked
staff to prepare a guidance document on allowable charges for the production
of public records and post it on the Council's website. The Council
acknowledged that perhaps a legislative change is indicated.
Request: release of Administrative Investigation of Mental Health Agencies
The final issue
raised by staff concerned existing FOIA provisions related to release
of administrative investigations of various mental health agencies,
specifically, subdivisions 3, 5, and 8 of § 2.2-3705.3 and subdivision
1 of § 2.2-3705.5.
of Mental Health, Mental Retardation, and Substance Abuse Services (DMHMRSAS)
had requested that the topic of the release of employee information
in cases of investigations of patient abuse or neglect be covered in
FOIA training. The referenced exemptions provide that reports of completed
investigations were open under FOIA, except for patient
identifying information and the identities of persons supplying information.
Some exemptions also included protection of "other individuals
involved in the investigation."
raised by staff included (i) whether the language "or other individuals
involved in the investigation" includes protection for the employee
accused of the abuse or neglect and (ii) whether public policy grounds
exist to explain differing standards governing release of information
among agencies that investigate cases of patient abuse or neglect.
The Council asked
that staff confer with representatives of the Department of Mental Health,
Mental Retardation, and Substance Abuse Services, the Office of the
Inspector General, and the Virginia Office of Protection and Advocacy
regarding their respective exemptions.
on Sunshine Week
The week of March
13, 2004 was designated as Sunshine Week. The Council heard from representatives
of the print and broadcast media as well the Virginia Coalition for Open
The VPA indicated
that Sunshine Week was a national multimedia effort to raise the public's
awareness of its right to know about the operation of government. The
VPA indicated that Virginia had seven representatives on the national
Sunshine Week steering committee. The VPA reported that newspapers used
online questions and answers, editorials, and editorial cartoons as part
of Sunshine Week, and that newspapers are still receiving feedback from
the public, including letters to the editor, commenting on the value of
The Virginia Association
of Broadcasters (VAB) commented that their membership took a two-prong
approach to Sunshine Week--educating themselves about public access and
educating the public.
VCOG reported that as a result of Sunshine Week, there has been increased
awareness of the Council, its role, and FOIA generally. Virginia is ranked
as one of the top ten states for effective FOIA laws. Plans for a 2006
Sunshine Week are being made, including a proclamation from the Governor.
Staff reported that
for the period December 1, 2004 through March 22, 2005, it had received
a total of 494 inquiries. The number of FOIA inquiries has significantly
increased when compared to previous years. Of the 494 inquiries, 12 were
requests for formal written opinions and the remaining 482 were telephone
and email inquires. Citizens accounted for 204 of the informal inquiries,
the government for 198 inquiries, and the media for 75 inquiries.
Staff advised that
plans were being made for the Council-sponsored symposium on children's
records, where various state and local agencies holding records concerning
children will make presentations about their respective records and whether
release is restricted. The ultimate goal of the symposium is the compilation
and publication of the various statutes relating to access to children's
The annual statewide FOIA workshops are planned for late summer and will
be held at five statewide locations.
of the FOIA Council
The Council set its
next two meeting dates for Wednesday, June 15, 2004 and Wednesday, August
31, 2005, to be held at 1:00 p.m. in Richmond.
The Hon. R. Edward
Maria J.K. Everett
of Legislative Services > Legislative
Record > 2005
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