Freedom of Information Advisory
Council
November
18, 2002
Richmond
Electronic Communications and FOIA
The Freedom of Information Advisory
Council began its meeting with a discussion of the FOIA suit filed in
Fredericksburg against five members of the Fredericksburg City Council
alleging that they held 16 illegal electronic meetings via e-mail and
three illegal face-to-face meetings. The defendants include the mayor
and vice-mayor of the City Council, as well as three newly elected City
Council members who did not take office until July 1, 2002. The suit asks
the court to prohibit the members from holding future e-mail and private
meetings and asks for penalties of $43,500 each to be imposed on three
of the defendants and $41,000 each on the other two defendants.
The defendants filed demurrers,
arguing that use of e-mail does not constitute a meeting under FOIA and
that the majority of the e-mails in question were sent before three of
the defendants took office. The judge dismissed nine of the counts of
the complaints involving e-mails sent before July 1, 2002, on the grounds
that the members-elect were not members of the public body before this
date, and set a trial for December 13, 2002 to hear the remaining counts.
The suit in Fredericksburg will
allow a court to address, for the first time, the gray area of electronic
communications and when electronic correspondence may cross the line and
become a meeting for purposes of FOIA. The law is clear that an e-mail
is a public record under FOIA, but does not directly address the use of
e-mail in a meetings context. The law does prohibit electronic meetings,
except as specifically allowed in §§ 2.2-3708 and 2.2-3709.
However, it is unclear as to whether the use of e-mail constitutes an
electronic meeting when messages are exchanged among three or more members
of a public body. FOIA does contemplate the use of e-mail by public officials
by affirmatively stating that e-mail may be used to separately contact
the membership to ascertain a member's position with respect to the
transaction of public business. This position is echoed in the opinion
of the Attorney General cited above.
Until a line is established
by the courts or the legislature as to whether electronic communications
can cross the line between correspondence and a meeting, one might best
heed the policy of FOIA that the law is written to ensure that public
bodies deliberate in public. If a member of a public body is questioning
whether an electronic communication might lead to the deliberation of
public business by three or more members of that public body, then that
communication should probably be saved for a public meeting.
The Office of the Attorney General
has addressed the question of whether subsection A of § 2.2-3708
would prohibit an elected member of a local governing body from sending
e-mail communications to three or more other members of the governing
body. The Attorney General opined that while this section did prohibit
a local governing body from conducting a meeting unless the members were
physically assembled, it did not prohibit all forms of communication among
the members when the body was not physically assembled. The opinion referred
to subsection B of § 2.2-3710, which allows the membership to separately
contact one another to ascertain a member's position with respect
to the transaction of public business, to illustrate that members may
communicate outside of a meeting.
Sending an e-mail is the electronic
transmission of correspondence over communication networks and does not
constitute conducting a meeting. Thus, the Attorney General concluded
that the electronic meetings provision of FOIA did not prohibit a member
of a governing body from sending a message, even to multiple recipients
at the same time. The underlying theme of the opinion seems to rest on
the fact that the use of e-mail does not result in the simultaneous communication
that occurs when members are sitting together physically. The opinion
did note in footnote seven, however, that "[t]his is not to say that,
in a particular factual setting, communicating through electronic mail
could not violate some other provision of The Virginia Freedom of Information
Act or conflict with the policy of the Act."
The council continued to monitor
the progress of the two subcommittees created by the council to study
(i) the apparent conflict between FOIA and the Virginia Public Procurement
Act (VPPA) and (ii) HB 900, referred by the 2002 Session of the General
Assembly to the council.
VPPA and FOIA Subcommittee
The subcommittee studying FOIA
and the Virginia Public Procurement Act met again with several representatives
of state and local government and the media concerning the issues assigned
to the subcommittee.
After the first meeting, a draft
was circulated that would have amended the meeting exemption subdivision
A6 of § 2.2-3711 to include contract discussions and negotiations,
for so long as an open meeting would adversely affect either party in
the negotiating process. The exemption currently only covers discussions
of the investing of public funds where competition or bargaining is involved,
where, if made public initially, the financial interest of the governmental
unit would be adversely affected.
Concerns were raised that the
proposed exemption was too broad, and participants agreed that instead
of trying to amend an existing exemption, a new exemption should be created.
After discussion, the subcommittee
agreed that an exemption A30 should be added to § 2.2-3711 that would
exempt "discussion of the award of a public contract involving the
expenditure of public funds, including interviews of bidders or offerors,
and discussion of the terms or scope of such contract, where discussion
in an open session would adversely affect the bargaining position or negotiating
strategy of the public body."
In addition to exemption discussions
relating to the award of a contract, the subcommittee thought that a corresponding
records exemption should also be created. The following language was proposed
to create an exemption A82 at § 2.2-3705 for
records relating to the
negotiation and award of a specific contract where competition or bargaining
is involved and where the release of such records would adversely affect
the bargaining position or negotiating strategy of the public body.
Such records shall not be withheld after the public body has made a
decision to award or not to award the contract. In the case of procurement
transactions conducted pursuant to the Virginia Public Procurement Act
(§ 2.2-4300 et seq.), the provisions of this subdivision shall
not apply, and any release of records relating to such transactions
shall be governed by the Virginia Public Procurement Act.
The council by consensus agreed
to the subcommittee's proposed amendments described above and will
recommend these amendments to the 2003 Session of the General Assembly.
HB 900 Subcommittee
The subcommittee studying FOIA
and House Bill 900 met again with several representatives of state and
local government and the media concerning the issues raised by the bill.
After the first meeting of the
subcommittee, a draft was circulated that would have amended subsection
F of § 2.2-3704 to give public bodies the discretion to require a
requester to pay for a FOIA response before it would be required to honor
a subsequent FOIA request by the same requester.
At the most recent meeting,
the subcommittee addressed concerns that there was no provision giving
the requester time to pay an amount due for a FOIA request before a public
body could begin to refuse subsequent requests. Some participants envisioned
that this may create an unfair situation for a requester, since generally
a person has a certain amount of time to pay a bill—such as 15 or
30 days—before penalties apply.
As a result of these concerns,
it was agreed that the draft should include a 30-day period for a requester
to pay any outstanding amounts due from a previous FOIA request before
the public body could refuse a subsequent request. The participants at
the meeting worked on several drafts of proposed language during the course
of the meeting.
The following changes are proposed:
1. As a technical change to
the language of FOIA, subsection F of § 2.2-3704 would be changed
from "a public body may make reasonable charges for its actual
costs," to read "a public body may make reasonable charges,
not to exceed its actual costs." This change would make the language
in subsection F parallel with the language in subsection G regarding
charges for access to electronic records, which currently reads that
electronic records "shall be made available to a requester at a
reasonable cost, not to exceed the actual cost in accordance with subsection
F."
2. As a technical change to
the language of FOIA, the paragraph that allows a public body to require
a deposit if it determines in advance that charges for producing requested
records will likely exceed $200 will be moved into its own subsection
and would become subsection H of § 2.2-3704. The language of that
paragraph would remain unchanged.
3. The new provision allowing
a public body to require a requester to pay for a FOIA response before
it will honor subsequent requests will be inserted as subsection I of
§ 2.2-3704. The language agreed to by the subcommittee would read,
"Before processing a request for records, a public body may
require the requester to pay any amounts owed to the public body for
previous requests for records that have not been paid within 30 days
after billing."
4. With these changes, the
current subsection H of § 2.2-3704 would be renumbered to become
subsection J.
The council by consensus agreed
to the subcommittee's proposed amendments described above and will
recommend these amendments to the 2003 Session of the General Assembly.
Other Legislative Updates
The council heard from several
state and local agencies concerning their perceived need for amendments
to FOIA. Specifically, the council heard from:
- The director of government
relations, Fairfax County Public Schools, concerning the need to withhold
from release records of the investigation of claims filed against the
insurance policy of the school system. Currently there is an exemption
for records concerning reserves established in specific claims administered
by the Department of the Treasury through its Division of Risk Management
or by any county, city, or town. However, it is arguable that the existing
law would not exempt such investigative records. Another issue raised
was that FOIA contains no exemption for local school boards to withhold
confidential investigator notes and other correspondence and information,
furnished with respect to an active investigation of an individual employment
discrimination complaint. Such an exemption is available under FOIA
only for the Department of Human Resource Management.
- The State Board of Elections
advised the council that it was evaluating the need to rectify FOIA's
meeting provisions and meetings of state and local electoral boards
under state election laws. Each such board has only three members, and
each time two such members gather, they are having a meeting under FOIA
that requires notice, openness to the public, and minutes. The local
boards want to be in compliance with all state laws.
- The Virginia Commission on
Youth advised that its study of the release of juvenile records and
the consent to the release of those records revealed that under FOIA,
a juvenile may not consent to the release of his own medical records.
Section 54.1-2969 E 5 allows a juvenile in certain cases to consent
to the release of his medical records.
- The Sheriff of York County,
for the Virginia Sheriff's Association, discussed the release of
search warrants by the courts. He indicated the FOIA protected many
aspects of a criminal investigation and prosecution, but that jeopardy
to a case may result from the release of unserved search warrants and
search warrant affidavits. Law-enforcement officials are trained to
be very specific in detailing pertinent information important to an
investigation, including the name of a juvenile or a victim, on the
search warrant affadavit. The legislative committee of the Virginia
Sheriffs' Association unanimously endorsed legislation that would
allow courts to withhold search warrants, returns and affidavits where
jeopardy to the investigation of a case would result. A representative
of the Virginia Press Association advised the council that under current
law, a commonwealth's attorney may, for good cause shown, motion
the court to seal the warrants. It was also noted that the underlying
reason that search warrants are open is that they are part of the preliminary
judicial process and due process requires the showing of probable cause
by the government.
Other Business
The council discussed instituting
a process for the receipt of legislative updates and requests from state
and local agencies. The council felt that such legislative discussions
should occur in the early fall so that the council could have more time
to examine and deliberate on the issues raised and to appoint any subcommittees
they deemed necessary.
The council heard a recap from
staff about the results of the 2002 Statewide FOIA Workshops held in September
at seven statewide locations: Big Stone Gap, Roanoke, Harrisonburg, Loudoun
County, Prince William County, Richmond, and Virginia Beach. Staff indicated
that 418 persons attended the various workshops, and the course evaluation
forms turned in by the participants indicated that the workshops received
high marks on content and presentation.
In addition, staff indicated
that in the 61 days since the last council meeting, staff had responded
to a total of 320 inquiries. Of these, the council has issued 10 written
advisory opinions and responded to 310 e-mail or telephone inquiries.
The next meeting of the council
has been tentatively set for Wednesday, March 5, 2003, at 10:00 a.m. in
Richmond.
Chairman:
The Hon. R. Edward
Houck
For information,
contact:
Maria J. K. Everett
Executive Director
Website:
http://dls.state.va.us/foiacouncil.htm
THE
RECORD
Privacy Statement
| Legislative Services | General
Assembly |