Freedom of Information Advisory Council

December 3, 2007

The Freedom of Information Advisory Council (the Council) held its final meeting of 2007 on December 3, 2007. The meeting included the annual legislative preview for the upcoming session of the General Assembly. The Council heard final reports from its two subcommittees; reviewed legislative proposals, including those from non-Council sources as part of the legislative preview; and received a draft copy of its 2007 annual report to the Governor and the General Assembly. The Council welcomed its newest member, George T. Whitehurst, who was recently appointed by the Speaker to fill Stewart Bryan's seat on the Council. The Council also set its first meeting for 2008 to be held on March 31, 2008, in Richmond.

SUBCOMMITTEE REPORTS

Electronic Meetings Subcommittee
John Edwards, chair of the subcommittee, stated that the subcommittee met three times to address three referred bills. Delegate McClellan spoke to her bill, HB 2293, at the first meeting of the subcommittee. The other patrons did not attend the meetings of the subcommittee. Mr. Edwards advised the Council of the subcommittee's recommendations as follows:

HB 2293 (McClellan) - The subcommittee voted 4-0 to recommend against HB 2293, which would have allowed local public bodies to meet through electronic means only when gathering information and where no action is to be taken at the meeting.

SB 1271 (Whipple) - The subcommittee voted 4-0 to table SB 1271 unless the patron requested further consideration of the bill; the patron has not done so. The bill would have eliminated the requirement that a quorum of a state public body be physically assembled in one primary location in order for the public body to conduct a meeting through electronic communications means. Instead of the quorum, the bill provided that at least two members of the public body be physically assembled at one location.

HB 2553 (Ebbin) -The subcommittee voted 5-0 to recommend a revised draft of HB 2553 to the Council. The draft as revised would allow:

• A local public body to meet by electronic means without a physically assembled quorum.
• When the Governor has declared a state of emergency (and not locally-declared emergencies).
• The catastrophic nature of the emergency makes it impracticable or unsafe to assemble a quorum in one location.
• The purpose of the meeting is to address the emergency.
• The local public body must also give public notice contemporaneously with the notice given the members, using the best possible methods given the nature of the emergency; make arrangements for public access to the meeting; and otherwise comply with the usual rules for electronic meetings.
• The minutes must reflect the nature of the emergency and the fact that the meeting was held electronically.
• Additionally, the draft bill makes a technical amendment in the definition of "meeting" to include the provisions of § 2.2-3708.1 (added in 2007).

PERSONAL IDENTIFYING INFORMATION SUBCOMMITTEE

Senator Houck, chair, reported that the subcommittee has held six meetings to date to deliberate on the nine bills referred for study. Five meetings were joint meetings with a subcommittee of the Joint Commission on Technology and Science (JCOTS) to consider HB 2821 and SB 819, both of which were referred to the FOIA Council and JCOTS. He first discussed the work of the Subcommittee in conjunction with the JCOTS Subcommittee (hereinafter referred to as the subcommittees).

The subcommittees decided to focus on HB 2821, concerning Social Security Numbers (SSNs), because SB 819 was too broad as drafted and the subcommittees were concerned about the possibility of unintended consequences of such far reaching language. Senator Houck noted that the subcommittees have examined extensively the treatment of SSNs under Virginia law, federal law, and the laws of other states, all of which take somewhat different approaches. With regard to HB 2821 specifically, the subcommittees shifted their focus from crafting a FOIA exemption for SSNs to the issue of over collection of SSNs by government. This shift came as a result of public comment at the July meeting that indicated that the real problem was over collection. Additionally, public comment indicated that a FOIA exemption was problematic for certain entities (e.g. print media, data aggregators, private investigators, and others) because of their expressed need for SSNs to verify identity. Further, a FOIA exemption would be harmful to the basic policy of FOIA that motive for a request is immaterial. The discretionary release of a SSN under such an exemption would require the government to ascertain the motive for the request. Additionally, it was argued by privacy advocates that FOIA exemptions are discretionary with the public body having custody of the record and thus would allow a government entity to release records containing SSNs unless expressly prohibited by some other law. Alternatively, access advocates argued that a FOIA exemption for SSNs, although discretionary, would be treated by government as a prohibition and effectively no SSNs would be accessible. Based on the foregoing and recognizing the complexity of the attendant issues, the Subcommittees agreed that they would address the over collection issue in legislation for the 2008 Session of the General Assembly. The Subcommittees are committed, however, to continuing their examination of public access to SSNs during 2008.

The subcommittees found that increasing privacy concerns over access to personal identifying information contained in public records was due to state and local government routinely collecting too much personal information as part of their operation without a demonstrated need for it--an issue the GDCDPA seeks to limit. The subcommittees felt strongly that the inappropriate over collection of personal identifying information needs to be addressed now. Staff noted that this issue was included in a FOIA Council Advisory Opinion (AO-08-06) issued on August 22, 2006.

The subcommittees unanimously recommended legislation to the Council limiting the collection of SSNs by state and local government to those instances where collection of SSNs is required by law and the collection of SSN is essential to the mission of the agency. The legislation also adds certain specific categories to the definition of personal information, strengthens the remedies provisions of the GDCDPA by adding civil penalties matching those in FOIA, and makes a technical change to allow general district courts to hear GDCDPA cases. Additionally, the draft has enactment clauses giving it a delayed effective date of July 1, 2009, and requiring agencies to study their own collection and use of SSNs and report to the FOIA Council and JCOTS on such collection and use by October 1, 2008. The draft also sets forth protections for the information so received (which might otherwise reveal means of obtaining unprotected SSNs in public records). Senator Houck noted that a press release about this draft was issued to the Office of the Governor and his Secretaries, the Virginia Municipal League, the Virginia Association of Counties, the FOIA Council and JCOTS mailing lists, and other interested parties on November 8, 2007 in order to apprise them of the subcommittees' work and potential legislation.

Senator Houck then reported on the work of the subcommittee, which studied the other bills referred exclusively to the Council by the General Assembly in 2007. He reminded the Council that the PII Subcommittee also gave consideration to the issue of access to concealed handgun permit information. He advised of the following PII Subcommittee actions:

HB 2558 (Brink) - Release of rabies certificate information. The Virginia Treasurers' Association and the Virginia Veterinarians' Association are working on a form for use state-wide that limits the amount of personal information available to the public. These associations will report directly to the Council.

HB 3097 (Cole)/SB 1106 (Chichester) - Release of constituent contact information. The bills were tabled without objection because no consensus was reached after the subcommittee debated the issues involved and considered draft legislation that attempted to distinguish between personal correspondence and correspondence addressing public business.

HB 3118 (Carrico)/SB 883 (Deeds) - Release of the names, addresses, and social security numbers of holders of boat, fishing, hunting, and other licenses/permits issued by the Department of Game and Inland Fisheries. No action taken by the PII subcommittee.

HB 3161 (Marshall, D.W.)/SB 1404 (Hanger) - Expansion of complainant information for violation of any local ordinance (currently only protected for zoning violations). The bills were tabled by vote of 4 to 0. After discussion there was a consensus that the bills were overreaching.

On the issue of public access to records of holders of concealed handgun permits (CHPs), Senator Houck advised that the subcommittee unanimously recommended legislation that would restrict access to the statewide list of Virginia citizens who hold CHPs compiled by the Department of State Police (DSP), but would allow access to the lists of permittees held by individual court clerks, the lists of out-of-state permittees held by DSP, and any aggregate or statistical information that does not identify individual permittees.

Senator Houck concluded his report by indicating that at every meeting of the subcommittee alone and in conjunction with JCOTS public comment was received that helped guide the work of the subcommittee. He noted, however, that there was some disagreement from interested parties in the legislative direction upon which the subcommittee ultimately agreed.

A complete summary of the meeting, including copies of drafts of proposed legislation appear on the Council's website.

Chairman:
The Hon. R. Edward Houck

For information, contact:
Maria Everett, Executive Director

Website:
http://dls.state.va.us/foiacouncil.htm

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