Freedom of Information Advisory Council

March 23, 2005

The Freedom of Information Advisory Council (the Council) held its first quarterly meeting of 2005. The Council reviewed legislative changes to the Freedom of Information Act (FOIA) made by the 2005 General Assembly; identified topics for study, including bills referred to the Council for further examination; and developed a study plan for this year's work.

Legislative Update

The 2005 Session of the General Assembly passed a total of 12 bills amending FOIA. SB 711, recommended by the Council, amended the requirements for electronic meetings. SB 711 was incorporated into the nearly-identical bill, SB 1196, recommended by the Joint Commission on Technology and Science (JCOTS). SB711/SB 1196 passed as a joint recommendation of the Council and JCOTS.

Of the 12 bills, six bills created new record exemptions to FOIA: HB 2399 added an exemption for 911 or E-911 subscriber data collected by local governing bodies; HB 2729 added an exemption for records of active investigations conducted by the Department of Criminal Justice Services of certain of its licensees; HB 2404 added an exemption for proprietary records of local wireless service authorities; SB 959 added an exemption for proprietary records of local public bodies providing telecommunications and cable television services; HB 2032 added an exemption for the Statewide Alert Network program records; and SB 1157 added an exemption for records of the Judicial Inquiry and Review Commission. Two of the six bills, HB 2404 and SB 959, also created new closed meeting exemptions corresponding to their respective records exemptions.

In addition to SB 1196/SB 711, four bills amended current exemptions under FOIA: HB 2516 and SB 1109, which are identical, made technical amendments to existing provisions concerning minors' health records; SB 1023 made a technical amendment to the existing provision concerning involuntary admission records as part of the re-codification of Title 37.1 as Title 37.2; and SB 752 extended the sunset provision for electronic meetings held by the Board of Visitors of the University of Virginia.

One other bill, HB 2930, addressed voting security matters involving the State Board of Elections and local electoral boards and also created a new closed meeting exemption within FOIA. In amending Title 24.2 (election laws), HB 2930 also exempted certain records from disclosure under FOIA and provided that "site visits" are not "meetings" subject to FOIA.

A complete listing and description of FOIA and other related access bills considered by the 2005 Session of the General Assembly is available on the Council's website.

Bills Referred to the Council for Study

Three bills were referred to the Council for study by the 2005 Session of the General Assembly. The Council discussed the issues raised by each bill.

• HB 1733 (Cosgrove); Freedom of Information Act; record exemption for certain email addresses. Revises a current exemption for personal information, including electronic mail addresses, to allow the withholding of such information unless the subject of the record waives the protections afforded by the exemption. Currently, the presumption is that the record is open unless the subject of the record indicates that the record should not be released.
• HB 2672 (Plum); Virginia Freedom of Information Act; meetings exemption. Amends an existing meeting exemption to allow for closed meetings to discuss records exempt from public disclosure relating to the Public-Private Education Facilities and Infrastructure Act (PPEA).
• HB 2760 (Reese); Freedom of Information Act (FOIA); electronic meetings. Allows local public bodies to conduct meetings under FOIA through electronic communication means (telephone or audio/visual). Currently, only state public bodies may conduct meetings in this manner.

  HB 2672

  The Council was advised that Delegate Plum had requested a representative of the Virginia Information Technologies Agency (VITA) to present HB 2672 on his behalf. The bill was introduced to address a need brought to Delegate Plum's attention by the Information Technology Investment Board, which wanted to meet in closed session to discuss confidential proprietary records submitted to VITA as part of a procurement proposal under the Public-Private Educational and Infrastructure Act (PPEA). Inclusion of such discussions under the PPEA would expand the current closed meeting exemption now available to public bodies under the Public-Private Transportation Act (PPTA).

  The Virginia Press Association (VPA) stated that it had no problem with the bill itself, but was concerned how the current record exemption for PPEA and PPTA proposals was used to
  withhold more records than are authorized under the exemption. This concern was also shared by the Virginia Coalition for Open Government and the Associated General Contractors of Virginia.

  The Council agreed to appoint a subcommittee consisting of Council members Axselle, Edwards, and Hallock to examine the issues identified. It was noted that a work group would be formed to revise the model guidelines for the PPEA, SB 1107 (Stosch). The Council directed staff to monitor the SB 1107 work group and report to the Council subcommittee on HB 2672.

  HB 2760

  The Council appointed a subcommittee consisting of Council members Edwards, Fifer, Miller and Wiley to discuss the appropriateness of expanding authorization for the conduct of electronic meetings to local regional authorities and other local public bodies.

  HB 1733

  The Council deferred further consideration of HB 1733 until its next meeting.

Other Issues for the Council's Consideration

FOIA Request: "Records Do Not Exist"

Staff raised several issues for the Council's consideration. The first issue concerned whether a mandated fifth response to a FOIA request--the requested records do not exist--was needed. Currently under FOIA, a public body is under no obligation to create records that do not exist in response to a specific request nor is a public body required to respond to a requester if the requested record does not exist. The lack of a required response in these instances leads to confusion and exacerbates any feelings of distrust. In a written opinion (AO-16-04), the Council previously opined that a public body should make this written response where applicable in order to avoid confusion and frustration on the part of the requester. The Council directed staff to examine this issue more fully and present a proposal for the Council's consideration.

FOIA Request: Licensing Agreements with VITA

The next issue discussed was the production of public records under FOIA versus the production of public records under licensing agreements with VITA. When the Virginia Information Providers Network Authority (VIPNET) was originally created, the act included language that clarified the responsibilities of public bodies for the production of records made under FOIA and those "value added" records produced through VIPNET and subject to a licensing agreement with the requester. In 2003, when VITA was created, the referenced language was repealed because of the incorporation of VIPNET into VITA. During the 2005 Session, SB 1027 dissolved VIPNET as a separate division within VITA.
Reinstating the original language relating to the responsibilities of public bodies to produce public records may help eliminate confusion and clarify obligations for the production of records. Staff noted that language added to
SB 1027 may already speak to the issue of production of public records in response to a FOIA request. The relevant language in SB 1027 states that "Nothing . . . shall be construed to prevent access to public records pursuant to Virginia Freedom of Information Act . . . under the terms and conditions set forth in § 2.2-3704."
The Council agreed that clarification of the obligations of public bodies in responding to FOIA requests in light of any licensing agreements with VITA would be advisable. Staff was directed to work with VITA on preparing a guidance document for dissemination to the various state and local public bodies.

FOIA Request: charges for Databases

The Council next discussed charges for databases under FOIA (subsection J of § 2.2-3704) and other laws and examined the apparent disparate provisions in the Code of Virginia. (e.g., § 2.2-4008). Specifically, subsection J of § 2.2-3704 provides "Every public body of state government shall compile, and annually update, an index of computer databases that contains at a minimum those databases created by them on or after July 1, 1997. . . . Such index shall be a public record and shall include, at a minimum, the following information with respect to each database... a schedule of fees for the production of copies in each available form." Further, § 2.2-4008,
relating to availability of guidance documents under the Administrative Process Act, provides "… Each agency shall also (i) maintain a complete list of all of its currently operative guidance documents and make the list available for public inspection . . . and (iii) upon request, make copies of such lists or guidance documents available without charge, at cost, or on payment of a reasonable fee." (emphasis added).

Subsection F of § 2.2-3704 of FOIA requires that a public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. These variations in language are confusing to both public bodies and requesters alike in what is an allowable charge.

Staff stated that it has received many inquiries concerning allowable charges for databases and suggested that one solution may be to specifically reference subsection F of § 2.2-3704, which clarifies the allowable charges for these databases and guidance documents. The Council agreed that charges for the production of public records, including databases, should be governed by FOIA and addressed uniformly in the Code of Virginia.

The Council asked staff to prepare a guidance document on allowable charges for the production of public records and post it on the Council's website. The Council acknowledged that perhaps a legislative change is indicated.

FOIA Request: release of Administrative Investigation of Mental Health Agencies

The final issue raised by staff concerned existing FOIA provisions related to release of administrative investigations of various mental health agencies, specifically, subdivisions 3, 5, and 8 of § 2.2-3705.3 and subdivision 1 of § 2.2-3705.5.

The Department of Mental Health, Mental Retardation, and Substance Abuse Services (DMHMRSAS) had requested that the topic of the release of employee information in cases of investigations of patient abuse or neglect be covered in FOIA training. The referenced exemptions provide that reports of completed investigations were open under FOIA, except for patient
identifying information and the identities of persons supplying information. Some exemptions also included protection of "other individuals involved in the investigation."

Specific concerns raised by staff included (i) whether the language "or other individuals involved in the investigation" includes protection for the employee accused of the abuse or neglect and (ii) whether public policy grounds exist to explain differing standards governing release of information among agencies that investigate cases of patient abuse or neglect.

The Council asked that staff confer with representatives of the Department of Mental Health, Mental Retardation, and Substance Abuse Services, the Office of the Inspector General, and the Virginia Office of Protection and Advocacy regarding their respective exemptions.

Report on Sunshine Week

The week of March 13, 2004 was designated as Sunshine Week. The Council heard from representatives of the print and broadcast media as well the Virginia Coalition for Open Government (VCOG).

The VPA indicated that Sunshine Week was a national multimedia effort to raise the public's awareness of its right to know about the operation of government. The VPA indicated that Virginia had seven representatives on the national Sunshine Week steering committee. The VPA reported that newspapers used online questions and answers, editorials, and editorial cartoons as part of Sunshine Week, and that newspapers are still receiving feedback from the public, including letters to the editor, commenting on the value of Sunshine Week.

The Virginia Association of Broadcasters (VAB) commented that their membership took a two-prong approach to Sunshine Week--educating themselves about public access and educating the public.
VCOG reported that as a result of Sunshine Week, there has been increased awareness of the Council, its role, and FOIA generally. Virginia is ranked as one of the top ten states for effective FOIA laws. Plans for a 2006 Sunshine Week are being made, including a proclamation from the Governor.

Of Note

Staff reported that for the period December 1, 2004 through March 22, 2005, it had received a total of 494 inquiries. The number of FOIA inquiries has significantly increased when compared to previous years. Of the 494 inquiries, 12 were requests for formal written opinions and the remaining 482 were telephone and email inquires. Citizens accounted for 204 of the informal inquiries, the government for 198 inquiries, and the media for 75 inquiries.

Council-Sponsored Events

Staff advised that plans were being made for the Council-sponsored symposium on children's records, where various state and local agencies holding records concerning children will make presentations about their respective records and whether release is restricted. The ultimate goal of the symposium is the compilation and publication of the various statutes relating to access to children's records.
The annual statewide FOIA workshops are planned for late summer and will be held at five statewide locations.

Future Meetings of the FOIA Council

The Council set its next two meeting dates for Wednesday, June 15, 2004 and Wednesday, August 31, 2005, to be held at 1:00 p.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

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