HJR 187

Joint Subcommittee to Study the Virginia Freedom of Information Act

September 17, 1998, Richmond

The topic of the fourth meeting of the joint subcommittee was access to meetings. For use in future deliberations, staff provided the joint subcommittee with a comparison of the current law regarding access to meetings, minutes, and executive sessions under the Freedom of Information Act (FOIA) and the proposed amendments under consideration.

Common Cause of Virginia

The executive director of Common Cause of Virginia addressed the joint subcommittee, commending it for its work during the interim and offering suggestions for ways to improve public access to the workings of government under FOIA. The first suggestion related to the creation of a "sunshine" or Freedom of Information office, possibly in the legislative branch, which would hear complaints, resolve disputes, coordinate training of public officials, issue advisory opinions, and recommend changes to Virginia's FOIA. Citing Vermont, Kentucky, and Georgia as examples, he also recommended that FOIA specify the time by when minutes of public meetings would be made available.

On the issue of access to records of public employment disputes, it was suggested that Virginia, like North Carolina, should require state agencies to make annual reports to the Department of Personnel and Training concerning the costs of settlements, awards, attorney fees, litigation expenses and staff time costs associated with the defense or settlement of employee grievances and related personnel actions. This alternative would preserve the confidentiality of the individuals involved while making information about such matters generally available.

Finally, it was recommended that a public body be allowed to go into executive or closed session only upon the vote of two-thirds of the members of the public body. Similarly, there should be an opportunity for public comment at each public meeting unless at least two-thirds vote of the members of the public body vote not to permit public comment, stating the reasons therefor and including such reasons in the minutes.

Local Government Attorneys

Appearing for a second time before the joint subcommittee, the chairman of the ad hoc committee on FOIA of the Local Government Attorneys of Virginia, Inc. (LGA) renewed LGA's strenuous objection to the erosion of the attorney-client relationship suggested by the Virginia Press Association in the proposed redraft, indicating that the proposed amendments to FOIA, which make it impossible for local government attorneys to provide timely legal advice to their clients, are not in the public interest. The joint subcommittee was reminded that the attorney-client privilege belongs to the client, not the attorney, and is designed to protect communications from a client to the attorney. The attorney-client privilege does not provide protection for preventive legal advice needed by local governing bodies concerning litigation about to be filed against a locality.

Another area of concern cited was the amendment to the probable litigation exemption for which a public body may convene in an executive session. Under the proposed amendment, "imminently threatened litigation" would replace the current standard of "probable litigation" for which a public body may convene an executive session. Changing this standard would result in denying local government attorneys the ability to provide legal advice to their clients concerning litigation that is reasonably certain to be filed. As a result, public bodies would be denied the benefit of preventive legal advice to which all other potential litigants are entitled. Another detriment resulting from changing this standard is to limit discussions between local government attorneys and their clients about litigation to be filed on behalf of the local government.

Also discussed with the joint subcommittee were local governments' concerns with the proposed redraft on the issue of the posting of notice of public meetings in every office of the public body. Such a requirement was characterized as overkill. The alternative suggested was posting notice on a bulletin board in the office of the clerk of the governing body as well as posting notice on any electronic bulletin board maintained by the public body.

Other concerns expressed with the proposed redraft included the taking of minutes in executive session, the elimination of the minute-taking exemption for committees of the General Assembly and local governing bodies, and the restriction of discussion of real estate transactions in executive session to instances "where discussion in an open meeting would adversely affect the value of the property." In the latter case, the proposed redraft sets an inappropriate standard in that even if the value of the property is not affected, the public body may need to have confidential discussions with staff concerning that property. LGA renewed its request for a balanced approach to revision of Virginia's FOIA.

Public Comment

During the public comment portion of the meeting, the joint subcommittee heard from a representative of the Virginia Chapter of the Sierra Club, who presented the results of an informal survey of the agenda and meeting notices provided by the City of Richmond and the Counties of Henrico and Chesterfield. The survey revealed that proper notice was not given in some instances of what was characterized as "semi-secret" meetings where the public body would meet informally at a time earlier than the "formal" meeting (for which notice was given and an agenda provided). The Sierra Club also criticized as vague the mere reference to real estate used by public bodies to convene in executive session.

The joint subcommittee was briefed, by the attorney who represented The Roanoke Times, about the suit brought under FOIA to challenge the Bedford County School Board's decision to convene in executive session to discuss the adoption of a school drug testing policy. At issue in the suit, was the "advice of counsel" exemption used by the Bedford County School Board to convene the executive session. Members of the school board testified that they were unaware of the subject matter of the executive session involved. The major problem cited with the "advice of counsel" exception is that it is too broad and effectively allows public bodies to convene in executive session for controversial issues by classifying them as requiring legal advice.

The League of Women Voters of Montgomery County presented the result of its study of executive sessions used by public bodies in Montgomery County and the towns of Blacksburg and Christiansburg. It was reported that one-half of the 13 public agencies surveyed did not use executive sessions. Where executive sessions were convened, however, the following exemptions were cited most often: personnel matter (58 sessions), legal matters (48 sessions), real property acquisition or use (35 sessions), and student matters (12 sessions). The survey results were cited to indicate that there is wide gap between the public's perception of the appropriateness of the use of executive sessions and that of public officials.

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