HJR 187
Joint Subcommittee to Study the Virginia Freedom of Information Act
November 11, 1998, Richmond
Convening its sixth meeting of the interim, the joint subcommittee conducted a work session at which it began deliberations on the proposed redraft of the Freedom on Information Act (FOIA). At the beginning of the meeting, staff presented a progress report on the agreement(s) reached by the informal work group—comprised of the interested parties who have been encouraged by the chairman to meet informally to resolve the issues that divide them—on several areas of the proposed redraft.Work Group Agreements
Concluding three meetings with another scheduled, the informal work group continues to work to resolve the issues that remain in conflict. Consensus reached by the work group at its October 28, 1998, meeting generally included agreement on the following:
- requests for records would not be required to be in writing, thereby retaining current law;
- narrowing of certain record exemptions;
- reinstatement of the record exemption for the Virginia Housing Development Authority (VHDA) and other housing authorities;
- increasing from $10,000 to $20,000 the floor below which salaries of public employees would not be released;
- defining when and where notice of public meetings would be posted;
- clarifying that the burden of proof in enforcement actions under FOIA would be on the public body to establish an exemption by a preponderance of the evidence; and
- increasing the civil penalties for violations of FOIA from $25 to $100 for the first offense, and from $250 to $500 for a subsequent violation.
Decisions of the Joint Subcommittee
After lengthy discussion, the joint subcommittee voted to adopt the work group's recommendations concerning (i) the record exemption for legal memoranda and other attorney work products compiled specifically for use in litigation or in an active administrative investigation concerning a matter which is properly the subject of a closed meeting under FOIA; (ii) the reinstatement of the record exemption for the VHDA and other housing authorities; and (iii) increasing the civil penalties for violations of FOIA from $25 to $100 for the first offense, and $250 to $500 for a subsequent violation.In a departure from the proposed redraft, however, the joint subcommittee voted to increase the ceiling for a subsequent violation of FOIA from $1,000 to $2,500, citing the maximum penalty for a Class 1 misdemeanor, which is $2,500. The joint subcommittee also decided to reinstate the notice provisions for special or emergency meetings of public bodies as contained in current law and adopted the language in the proposed redraft which eliminated the condition and use of real estate as purposes for which public bodies may convene in executive session. As a result of the latter provision, only the discussion or consideration of the acquisition or disposition of real estate would be proper purposes for convening in executive session. A controversial provision in the proposed redraft requiring the taking of minutes in executive session was rejected by the joint subcommittee.
Finally, the joint subcommittee voted to reinstate current law, which provides that in an enforcement action, a court may consider the reliance of a public body on an opinion of the Attorney General or a decision of a court that substantially supports the public body's position. By consensus, the joint subcommittee decided to defer until 1999 the consideration of (i) the inclusion of certain foundations as public bodies, (ii) the creation of a "Sunshine Office" and (iii) the treatment of electronic records.
Next Meeting
The next meeting of the joint subcommittee has been set for Monday, December 21, 1998 at 10:00 a.m. in Richmond. This meeting will be a work session for the joint subcommittee, which will continue to craft amendments to FOIA. Documents and other information related to this study are available at: http://dls.state.va.us/hjr187.htm.
The Honorable Clifton A. Woodrum, Chairman
Legislative Services contact: Maria J.K. Everett