Division of Legislative Services > Legislative Record > 2006
Freedom of Information Advisory Council
October 11, 2006
The Freedom of Information Advisory Council (the Council) held its second meeting of 2006 on October 11, 2006. The Council heard progress reports from its three subcommittees, considered draft legislation concerning venue under FOIA, discussed public access to travel reimbursement records, received a presentation from representatives of the Virginia Retirement System regarding possible FOIA legislation, and received a presentation concerning online access to records held by the clerks of court.
The PPEA/PPTA Subcommittee met on August 9, 2006, and on August 23, 2006. The main topic for consideration was SB 5011, which passed during the 2006 Special Session with a sunset provision such that it expire will July 1, 2007. Bill Axselle, Chairman of the Subcommittee, reported that the Virginia Department of Transportation (VDOT) had requested that the sunset provision of SB 5011 be removed so that its provisions will not expire. Mr. Axselle indicated that the Subcommittee had agreed to recommend that legislation be passed similar to SB 5011 but narrower in scope. The recommended draft would preserve the position that a public body can keep certain records confidential after the signing of a comprehensive or interim agreement, as does SB 5011, but would be narrower in scope of application. In response to questions from the Council, Mr. Axselle noted that VDOT had participated in the Subcommittee meetings, but deferred to VDOT to make any comments of its own regarding the recommended draft. Senator Houck asked the Subcommittee to submit its recommendation for the full Council's consideration at the next Council meeting, which will include the annual preview of upcoming legislation. Note that the Virginia Press Association (VPA) distributed a proposed change to the draft bill at today's meeting, but the Subcommittee had not had an opportunity to review the VPA's proposal before making its report.
ELECTRONIC MEETINGS SUBCOMMITTEE
The Electronic Meetings Subcommittee met on August 9, 2006, August 23, 2006, and October 11, 2006. John Edwards, Chairman of the Subcommittee, reported that the work of the Subcommittee was not yet finished. Mr. Edwards indicated that the Subcommittee members had agreed to propose reducing the notice requirements for electronic meetings from the seven working days currently required down to three working days; to keep the current requirement that a quorum be physically assembled; to add an emergency participation provision to FOIA to allow members to participate by electronic means in emergency situations where the member originally intended to be physically present but is unable to do so; and to authorize regional public bodies to hold electronic meetings. There is a divergence of opinion regarding the definition of "regional public body," and the Subcommittee intends to meet again to reach consensus on that definition. Additionally, language was drafted to make allowance for disabled members of public bodies to participate in meetings by electronic means at the request of the Statewide Independent Living Council (SILC). However, the Subcommittee has not yet been able to meet with a representative of SILC. Mr. Edwards indicated that the Subcommittee was not comfortable recommending language on this issue without first getting feedback directly from SILC. Senator Houck agreed that the Subcommittee should meet again to work out the unresolved issues and to hear from SILC, and report back to the Council at its next meeting.
"FIFTH RESPONSE" SUBCOMMITTEE
The Fifth Response Subcommittee met on July 27, 2006. Craig Fifer, Chairman of the Subcommittee, reported that the Subcommittee had agreed to propose a draft that made four primary changes to existing law. First, the draft removes the term "custodian" from subsection B of § 2.2-3704. The Subcommittee proposed this change because the term "custodian" currently is not defined in FOIA, and use of the term can lead to confusion regarding who is responsible for responding to a records request. Second, the draft changes the presentation format of the responses to clarify unequivocally that if the public body is going to provide records in response to a request, it must do so within five working days of receipt of the request. Third, the draft adds a fifth response allowing public bodies to indicate that the requested records do not exist or cannot be found. This section of the draft also provides that if a public body has knowledge of where the records may be found (i.e., they are held by a different public body), it shall so inform the requester. Fourth, the draft allows a public body to invoke additional time to respond if the request requires an extraordinarily lengthy search for records. Currently additional time may be invoked if the request is for an extraordinary volume of records, but no provision is made for situations where other factors increase the time needed to search for records. Council members expressed concern regarding the removal of the term "custodian," and how it may affect the attribution of responsibility for responding to requests. Concern was also expressed regarding new language in the draft that could be interpreted as attributing knowledge to the public body itself, rather than to individual persons. The Council also asked the Subcommittee to consider the effects of the draft on the particular situation where an elected official receives numerous requests immediately prior to an election (i.e., someone abusing FOIA as a means of political harassment). Senator Houck directed the Subcommittee to continue its work and present a revised draft for consideration at the next full Council meeting.
FOR TRAVEL EXPENSES
ACCESS TO COURT
The final meeting of the Council will be held on December 15, 2006, in Richmond, which will include the annual legislative preview.
Division of Legislative Services > Legislative Record > 2006