Virginia Freedom of Information Advisory Council

September 21, 2009

The Virginia Freedom of Information Advisory Council (the Council) met in Richmond to receive subcommittee reports and hear about possible FOIA legislation.

Subcommittee Reports

Personal Identifying Information Subcommittee
The Council was advised that the Personal Identifying Information Subcommittee (PII Subcommittee) had met briefly at 9:30 a.m. before the Council meeting. Unfortunately, the PII Subcommittee lacked a quorum for this meeting and by consensus of those members in attendance decided to hold another subcommittee meeting if needed or specifically requested by patrons of bills being studied by the subcommittee on November 9, 2009. However, the redraft of SB 880 prepared by staff was reviewed by the Council.

Staff advised that the redraft for SB 880 provides that the name, address, telephone number, email address, and credit card or bank account data of individual applicants for or holders of any hunting, fishing, boating, or trapping license issued by an agent of the Department shall be exempt from FOIA disclosure, provided that such individuals have requested that the Department not disclose such information. A Council member inquired whether there was any general law that protected credit card or other bank card information. Staff responded in the negative. The member also asked whether licensee information should be open, save the bank card information, and further inquired whether the Council was now predisposed to keep licensee information away from the public. The consensus of the Council was that it was not predisposed to protect certain licensee information. Delegate Griffith stated that credit card and bank card information, and perhaps a licensee's email address should be protected. The Council by consensus stated that there should be a general exemption to protect credit card and bank card information; however, it is important that the public know who the licensed people are. The Council asked for public comment on this issue.

Craig Merritt, representing the Virginia Press Association (VPA), expressed that there is a legitimate need to protect people from identity theft and agrees that credit card and bank card information should be protected. However, he noted that the remainder of the information is already in the public domain via the telephone book, Internet search engines, and the like.

Chris White, representing Reed Elsevier (parent company of Lexis-Nexis), advised the Council that there were legitimate uses for licensee information. For example, in the context of child support enforcement, licensee information (i.e. who has a registered boat) is helpful to track "deadbeat dads" who may be hiding assets.

Other members of the Council felt that while name and address information should be public, telephone numbers and email addresses should be protected. As a result of the discussion, Delegate Griffith directed staff to again redraft the bill in two ways -- first to protect credit card and bank card information and the second version also to include protection for telephone numbers and email addresses. He indicated that the PII Subcommittee would meet again on Friday, November 6, 2009, at 10 a.m. to review these drafts. He asked staff to post the drafts by November 2, 2009.

Public Records Subcommittee

Staff reported that it was working on publication of a guidance document that would clarify what is covered under the definition of "public records" found in FOIA and give specific examples of those records.

Public Comment

Rob Lockridge, University of Virginia
Mr. Lockridge reported to the Council that it would be seeking an exemption in FOIA for the findings of threat assessment teams created under Chapter 450 of the 2008 Acts of Assembly. Chapter 450 requires public institutions of higher education to implement a crisis and emergency management plan to prevent violence on campus, including assessment and intervention with individuals whose behavior poses a threat to the safety of the campus community. Delegate Griffith inquired whether as a parent he should know about the assessments. He questioned whether there was a difference between an individual who may be behaving badly as a result of alcohol and someone who is truly a threat.

Jim Council, Prince William County Public Schools and Mary McGowan, Counsel to Prince William County Public Schools
Mr. Council and Ms. McGowan told the Council that they had two legislative initiatives. First, to address the serious unintended consequences from SB 1505 (2009) that attempted to clarify that enforcement actions under FOIA take precedence over other general provisions of law relating to writs of mandamus or injunction. Mr. Council and Ms. McGowan indicated that the changed language could be abused by a plaintiff who would only notice a public body of a petition on the day the petition was to be heard by the court, depriving the public body of any opportunity to prepare. By consensus, the Council agreed that this matter should be an agenda item for its meeting on November 9, 2009.

The second issue presented by Mr. Council and Ms. McGowan involved an exemption for the visitor surveillance system recently implemented in the Prince William County Public Schools, which was the subject of a Council opinion in 2008 (AO-03-08). That opinion held that to withhold any of the requested records relating to the visitor surveillance system from disclosure, whether the records are exempt portions of a school safety audits or may be withheld under other FOIA exemptions, the school must respond in writing, identify with reasonable particularity the volume and subject matter of the withheld records, and cite the specific statutory exemption or exemptions that allow the records to be withheld. Ms. McGowan indicated that this was a case where technology was ahead of the law. In brief, visitors are require to present government-issued identification, then the system scans the identification and performs a multistate background check against various databases. Information retained in the systems is routinely shared with local law enforcement. Mr. Council indicated that essentially the system was a background check for sex offenders and other individuals who may pose a threat to children, and is also useful for locating visitors in the case of any emergency.

A lengthy discussion then ensued regarding the surveillance issue and background checks. The complete report of the discussion can be read in its entirety on the Council’s website. As a result of the lengthy discussion and concerns expressed, Delegate Griffith requested that the Public Records Subcommittee study this issue. It was requested that the subcommittee identify what information is collected and then address what should be available and what should not. Delegate Griffith expressed his concern about the speed with which the system runs its checks and the resulting misidentification that can take place. He stated that it is generally held that the faster the processing of information the greater the likelihood of misidentification. He noted that implementation of this system certainly would have a chilling effect on people participating with the school system, especially someone with an old criminal conviction of which he has not told people (perhaps not even to a spouse). With this system, this would be known. The subcommittee was directed to study these issues and report back to the Council with a recommendation.

Other Business

Staff advised of the dates and locations where the 2009 statewide FOIA Workshops were held. Megan Rhyne for the Virginia Coalition for Open Government (VCOG) advised the Council of the VCOG conference in Staunton on October 15 and 16, 2009.

Next Meeting

The next meeting of the FOIA Council is scheduled to be held at 3:00 p.m. on Monday, November 9, 2009, for the Council's annual legislative preview. The meeting will be held in House Room D of the General Assembly Building.

Chairman:
The Hon. Morgan Griffith

For information, contact:
Maria J.K. Everett, DLS Staff