Freedom of Information Advisory Council

November 8, 2010

The FOIA Council held its final meeting of 2010 in Richmond, Virginia. The Council heard subcommittee reports, voted on subcommittee recommendations, and continued its annual legislative preview.

Subcommittee Reports

Rights and Remedies Subcommittee
Staff reported that the Rights and Remedies Subcommittee met on October 4, 2010, to continue its deliberations. The subcommittee’s work had begun with the discussion of HB 449, which would have provided a remedy for public bodies to use against requesters who use FOIA as a tool for harassment, but the subcommittee did not favor the legislation as drafted. The subcommittee generally agreed that there are requesters who misuse FOIA to harass or impede the work of public bodies, but there was no agreement that a legislative fix was necessary. Staff presented a draft proposed by Mr. Wiley, a member of the subcommittee, that would allow a court to decline to order the production of requested records under certain conditions. The Council then took up the draft for consideration as a legislative proposal. After a lengthy discussion that can be viewed in its entirely on the Council’s website, the matter was left on the table.

Criminal Investigative Records Subcommittee

Chairman Fifer reported that the Criminal Investigative Records Subcommittee had met three times this year. The subcommittee considered the issue of policy changes regarding access to criminal investigative records, but could not find common ground for substantive changes. Instead, the subcommittee considered a re-draft of § 2.2-3706 of the Code of Virginia intended to make the section easier to read and understand without introducing any substantive changes. The subcommittee agreed by consensus at its meeting to present the draft to the full Council for consideration, but because there was not a quorum present, there was no official recommendation from the subcommittee. Staff then presented the latest version of the redraft, noting that while it made no substantive changes, it reorganized the section into separate subsections addressing definitions, discretionary releases, required releases, prohibited release, noncriminal records, and conflict resolution. Staff further noted technical amendments contained in the draft, and that it had a second enactment clause stating that it was declaratory of existing law. After brief discussion expressing concern that introducing the draft might open up the entire topic to re-examination, the Council voted 8 - 2 in favor of recommending the draft. However, after the vote, concern was re-expressed by several members that introducing the draft might open up the entire topic to re-examination and unwanted mischief. Given that 2011 was an election year in the House of Delegates, it was suggested that introduction of the redraft of
§ 2.2-3706 be delayed until the 2012 Session of the General Assembly.

Annual Legislative Preview

David Blount, representing the Thomas Jefferson Planning District, advised the Council that legislation would be introduced affecting certain provisions of
§ 15.2-1418, outside of FOIA, regarding the notice provided to members of public bodies. He noted that the draft had been presented to the Virginia Municipal League, the Virginia Association of Counties, and Mr. Wiley, all without objection, and that it would not affect the public notice requirements of FOIA. There were no questions or comments on this matter.

Other Business

VITA charges to state agencies for retrieval of public records maintained by the Virginia Information Technologies Agency (VITA); experience of the Department of Environmental Quality (DEQ).

Staff related that DEQ had received a FOIA request for records maintained by VITA. Under FOIA, DEQ remains the custodian of these records and was initially charged $14,000 by VITA to make the records available to DEQ in response to the FOIA request. Ultimately, this charge was reduced by VITA to $3,800. VITA’s initial estimate came one month after the records were requested by DEQ, and the last estimate was almost two months after DEQ’s request. The question was brought forth on whether DEQ can pass on to the requester as part of the actual charges allowed under FOIA this additional charge to retrieve records from VITA, and whether it would be reasonable to do so. After some discussion, the Council agreed by consensus that more information was needed on the extent of this problem, particularly the frequency of occurrences and the costs involved. The Council directed staff to gather more information so that the matter could be taken up and addressed in detail by the Council in 2011.

Use of the word “archive” in subsection J of § 2.2-3704; implications to the Library of Virginia and the VA Public Records Act.

As an additional item of business, staff reported that the word “archive” is a term of art as used by the Library of Virginia in respect to its responsibilities under the VA Public Records Act (VPRA) and the archiving of public records. Under the VPRA, the Library becomes the custodian of records archived there. The legislative history of subsection J of § 2.2-3704, which was added in 2010, was to capture VITA and the Division of Legislative Automated Systems (DLAS), which provide IT support to the executive and legislative branches, respectively. The use of the term “archive” in this section of FOIA was not meant to capture the Library of Virginia within this provision. Staff presented two optional approaches to amend subsection J. After some discussion, the Council voted to recommend adding language to subsection J stating that “Nothing in this subsection shall be construed to apply to records transferred to the Library of Virginia for permanent archiving pursuant to the duties imposed by the Virginia Public Records Act (§ 42.1-76 et seq.).”

Public Comment

Craig Merritt, on behalf of the Virginia Press Association, suggested taking a hard look at the last matter to make sure that records permanently archived at the Library of Virginia were not inadvertently exempted from FOIA.

Mr. Miller suggested that staff survey local government and state agencies on issues such as harassment and VITA charges in order to provide information to the Council at its next meeting. The Council agreed without objection to examine those issues next year. Senator Houck noted that Delegate Griffith, Vice-Chair of the Council, would be leaving the Council as he had been elected to the United States Congress. Formal recognition of his service will be recognized at the appropriate time.

Chairman:
The Hon. Edward Houck

For information, contact:
Maria Everett, Alan Gernhardt, DLS Staff