HJR 187

Joint Subcommittee to Study the Virginia Freedom of Information Act

June 12, 1998, Richmond

During its organizational meeting the joint subcommittee considered its charge under HJR 187, and staff presented an overview and legislative history of the Virginia Freedom of Information Act (FOIA), advising the joint subcommittee that the last comprehensive study of the act was conducted in 1988. With the advent of technological changes, the methods of collecting, processing, and keeping official records have changed dramatically, with the effect of occasionally limiting public access to government records and meetings. This is one of the issues that will be examined by the joint subcommittee.

Background and History of FOIA

The Virginia Freedom of Information Act--Chapter 21 (§ 2.1-340 et seq.) of Title 2.1--was enacted by the 1968 Session of the General Assembly. The act provides for accessibility to public records and governmental meetings by the public, making disclosure the general rule and permitting only the information specifically exempted to be withheld. The policy of the act provides that disclosure requirements be construed broadly and exemptions be construed narrowly.

It is important to note that public bodies are not required to meet in open session by common law, the United States Constitution, or the Virginia Constitution. Therefore, the establishment of the open meeting principle in the act is purely a creature of statute. Section 2.1-340.1 was added in 1976 and expressed the intent of the 1976 Session of the General Assembly:

By enacting this chapter the General Assembly ensures the people of this Commonwealth ready access to records in the custody of public officials and free entry to meetings of public bodies wherein the business of the people is being conducted. . . . . The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. Unless the public body specifically elects to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all reports, documents and other material shall be available for disclosure upon request.

This chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exception or exemption from applicability shall be narrowly construed in order that nothing which should be public may be hidden from any person.

Press Association Draft

The Virginia Press Association presented its redraft of FOIA to the joint subcommittee, indicating that the purposes of the draft were to protect and expand the rights of the public and to reaffirm FOIA's fundamental principle of openness. The association identified six problems areas, which are addressed in its redraft: clarification of definitions, working papers exemption, discussion of real estate, computer records, criminal records, and trade secrets. It was noted that in many instances, FOIA is easier to use as a barrier than as a door.

Coalition for Open Government

A representative of the Virginia Coalition for Open Government reported to the joint subcommittee that countless record custodians work with average citizens, advocacy groups, and journalists throughout the Commonwealth to make public documents quickly and easily accessible, often on-line, and frequently at no additional taxpayer cost. Other data overseers, however, do only the minimum that the law requires, if that--failing to disclose criminal incidents, responding slowly to routine record requests, and charging excessive labor costs for requested documents.

Recommendations from the coalition included (i) a reorganization of FOIA to make it more accessible to citizens and to state clearly the responsibilities of government, (ii) the creation of a comprehensive notice system for public meetings, (iii) the placement of agendas and agenda materials on-line, (iv) minimum requirements for minute-taking, (v) the imposition of reasonable fees for providing documents, and (vi) the automatic recovery of attorneys' fees to a prevailing citizen. Finally, the coalition recommended that the joint subcommittee explore several approaches used by other states, such as the creation of a quasi-independent FOIA office, the creation of a FOIA enforcement agency, an expanded FOIA role for the Attorney General, or some type of hybrid of these approaches.

Citizen Comments

Several private citizens addressed the joint subcommittee, relaying their individual experiences in trying to gain access to public records and meetings. The consensus of these remarks concerned the areas of excessive fees imposed for record production, inadequate meeting notices, and the need for stiffer penalties for violations of FOIA by state and local governments.

Virginia Municipal League

A representative of the Virginia Municipal League (VML) informed the joint subcommittee that VML's position regarding FOIA is that it is basically a good law but that there may be areas where FOIA needs to be clarified. He cautioned the joint subcommittee that FOIA gets plenty of scrutiny, and balances between competing interests must be taken into account.

Future Activities

At the conclusion of the meeting, the joint subcommittee decided to use the redraft of FOIA presented by the Virginia Press Association as a basis for future discussion. The joint subcommittee also expressed an interest in examining other state FOIA laws, specifically in the areas of penalties for violations, alternative remedies and dispute resolution, and the creation of assisting agencies. Staff was directed to explore the creation of a website for the study to enhance public access and participation. The next meeting of the joint subcommittee has been scheduled for Wednesday, July 15, 1998, at 2:00 p.m. in Richmond.

The Honorable Clifton A. Woodrum, Chairman
Legislative Services contact: Maria J. K. Everett