Freedom of Information Advisory Council

September 10, 2007

The Freedom of Information Advisory Council (the Council) held its third meeting on June 6, 2007, to receive progress reports from two subcommittees. The Council also welcomed new Council member Dr. Sandra G. Treadway, Librarian of Virginia, who replaces Nolan Yelich, who retired from state service effective July 1, 2007. In addition, the Council heard from the University of Virginia (UVA) regarding a proposed exemption for certain donor records held by UVA.

SUBCOMMITTEE REPORTS

Electronic Meeting Subcommittee

HB 2293
The Electronic Meeting Subcommittee has met three times to address three bills referred to it for study with Senator John Edwards as chair. At the first meeting in May 2007, Delegate McClellan, patron of House Bill 2293, spoke to her bill that would have allowed local public bodies to meet through electronic means only when gathering information and no action is to be taken at the meeting. The members voted 4 to 0 to recommend against the bill. The members voted 4 to 0 to table Senate Bill 1271 (Whipple), unless the patron requests further consideration. The bill would have eliminated the requirement that a quorum of a state public body be physically assembled in one primary location in order for the public body to conduct a meeting through electronic communications means. Instead of the quorum, the bill provided that at least two members of the public body be physically assembled at one location.

HB 2553
The subcommittee voted 5 to 0 to recommend a revised draft of House Bill 2553 (Ebbin). The draft as revised would allow a local public body to meet by electronic means without a physically assembled quorum when the Governor has declared a state of emergency, the catastrophic nature of the emergency makes it impracticable or unsafe to assemble a quorum in one location, and the purpose of the meeting is to address the emergency. The local public body must meet the following conditions:

• Give public notice contemporaneously with the notice given the members, using the best possible methods given the nature of the emergency.
• Make arrangements for public access to the meeting.
• Comply with the usual rules for electronic meetings.

Also, the minutes must reflect the nature of the emergency and the fact that the meeting was held electronically. Additionally, the draft bill makes a technical amendment in the definition of "meeting" to include the provisions of § 2.2-3708.1 (added in 2007). Mr. Edwards moved that the full FOIA Council vote to recommend this draft, which was carried by unanimous vote.

Policy Statement on Electronic Meetings
The members discussed a possible statement by the Council of principles governing electronic meetings, because over the past three years that the subcommittee has met to consider various issues regarding electronic meetings, it has consistently favored requiring face-to-face meetings of local public bodies and the physical assembly of quorums of state public bodies. The members considered adopting these two guiding principles as a starting point in future discussions of electronic meetings. Points made by several members on the issue included the following:

• As a practical matter, electronic meetings will be a part of our lives, they increase efficiency and greatly reduce transportation costs, and since it is difficult to get good people to serve without being paid, the Council should make it as easy as possible to do so.
• The statement of principles would provide guidance and a starting point for discussion, but if agreed upon it could be discontinued or changed if needed by the Council.
• Live human discourse cannot be captured by technology and citizens want and expect face-to-face meetings.

The Council's strength lies in an independent forum for relevant topics and adopting a statement may give the appearance that the body has already determined limits on electronic meetings.

The Council voted on the statement of principles as a resolution of the Council. Because the vote was tied 4 to 4, the resolution did not pass and the statement of principles was not adopted.

Personal Identifying Information Subcommittee

The Personal Identifying Information Subcommittee has held three meetings to deliberate on the nine bills referred to it for study with Senator Edward Houck as chair. Two meetings were joint meetings with a subcommittee of the Joint Commission on Technology and Science (JCOTS) to address two bills, House Bill 2821 (Sickles), concerning access to Social Security Numbers (SSNs), and Senate Bill 819 (Cuccinelli), concerning access to personal information including date of birth, social security number, driver's license number, bank account numbers, credit or debit card numbers, personal identification numbers, electronic identification codes, automated or electronic signatures, biometric data, or fingerprints.

HB 2821
The joint subcommittee has examined the treatment of Social Security Numbers under Virginia law, federal law, and the laws of other states, all of which take somewhat different approaches and also looked at what personal information is collected by government from a practical perspective using real-life examples. The joint subcommittee found that government collects too much personal information and that this over-collection needs to be addressed, but decided that these issues are best addressed by legislation outside of FOIA for two reasons:

• The law should address the treatment of Social Security Numbers in the private sector as well as in public records and FOIA only applies to public records.
• Under FOIA, a requester's purpose in requesting records does not matter and any proposed law may need to account for good or bad intent of the request.

SB 819
The has found that definition of "personal information" in the Government Data Collection and Dissemination Practices Act needs to be updated. The members will continue its work to attempt to draft legislation that will best address the issues identified to date. The next meeting of the joint subcommittee has yet to be scheduled.

The Personal Identifying Information Subcommittee also considered seven other bills and the issue of concealed carry handgun permits:

• HB 2558 (Brink), which provides an exemption for certain information in rabies vaccination certificates-Vote was postponed until the Virginia Treasurers' Association and the Virginia Veterinarians' Association complete work on a form for use state-wide that limits the amount of personal information available to the public.
• HB 3097 (Cole) and SB 1106 (Chichester), identical bills concerning the release of certain information in constituent correspondence-Tabled without objection.
• HB 3118 (Carrico) and SB 883 (Deeds), identical bills exempting certain records held by the Department of Game and Inland Fisheries (DGIF)-Vote was postponed dependent on the members' decision regarding the larger issue of SSNs and personal information generally.
• HB 3161 (Marshall, D.) and SB 1404 (Hanger), identical bills expanding a current exemption regarding certain complainant information to include information in complaints for violations of any local ordinance-Bills were tabled by vote of 4 to 0.

CCH Permits
CCH permits became an issue of concern to the Council earlier this year after the Roanoke Times published on its website a list of CCH permit holders obtained from the Department of State Police (DSP). Shortly thereafter the newspaper removed the list from its website after a great deal public outcry concerning the online publication of permit holders' personal information. Lisa Wallmeyer, of the Division of Legislative Services, presented draft legislation that would codify the opinion of the Attorney General issued in April, 2007, by providing that DSP shall withhold from public disclosure permitted information submitted to DSP for purposes of entry into the Virginia Criminal Information Network (VCIN). Additionally, the draft presented today addresses a concern that arose at the last subcommittee meeting by clarifying that that records about nonresident permits issued by DSP remain open to the same extent that records held by the clerks of court concerning resident permits are open.

Craig Merritt, Virginia Press Association (VPA), suggested that further revision be made to the draft to keep personal information confidential, but to allow statistical information to be released. Senator Houck recommended that further consideration be postponed until the next Council meeting, which was agreed upon by the members. A draft concerning SSNs will also be prepared by the next full Council meeting.

UVA DISCLOSURE EXEMPTION

On behalf of University of Virginia, Robert Lockridge, Executive Assistant to the President for State Government Relations, presented draft legislation that would exempt certain donor records held by UVA from the mandatory disclosure requirements of FOIA. The proposed exemption would be added to § 2.2-3705.4. Mr. Lockridge noted that UVA is one of the most successful universities in the country in its fundraising efforts. In regard to donor records, Mr. Lockridge listed three confidentiality concerns:

• Donor does not want to be solicited for donations by other organizations.
• Donor has a child attending UVA and does not want the child's educational experience to be affected by the donation.
• Donor does not wish for his or her other family members to know of the donation.

Mr. Lockridge stated that not being able to promise anonymity to donors would lead to the erosion of donor confidence and a decrease in donations. As safeguards for public access, Mr. Lockridge pointed out that a requestor may obtain the total number of donors and total amount of donations, there would still be access to procurement records, the Auditor of Public Accounts would continue to have full access to all donation records, and UVA has two committees to ensure academic freedom and prevent undue influence from any anonymous donor, the Gift Policy and Gift Acceptance Committees. After further clarification that the exemption sought would still permit the disclosure of the amount, date, and purpose of a donation, Senator Houck opened the floor to public comment.

PUBLIC COMMENT

Jennifer Perkins, Spokesman for the Coalition for Open Government (VCOG), acknowledged that UVA made some good points, but that it is the university's choice to include foundation records in its files, thus subjecting foundation records to disclosure under FOIA. Ms. Perkins suggested the possibility of using a separate database for anonymous donors and leaving the main database completely open, noting that ideally the public should have the right to access both foundation and university records, especially in situations where a donor's name may be important.

Delegate Griffith noted that in the past there were many questions raised concerning the flow of money between foundations and universities. He asked whether the UVA approach was preferable to a foundation controlling all information regarding donations. Mr. Merritt noted that Delegate Griffith was correct, that in the late 1990s there had been an unsuccessful movement to open to public disclosure university foundation records. He explained that UVA and its Board of Visitors have chosen to maintain a commingled system of both private and public operations in its public database, and consequently, the database should be subject to the same presumption of openness as any other public record. Mr. Merritt stated that as a matter of public policy a donor should not make a gift anonymously to a public body, but foundations do provide a vehicle for these anonymous donations. Lynwood Butner, representing the Virginia Association of Broadcasters (VAB), reiterated that since UVA is a public entity, donations to the university should be subject to public scrutiny just as are campaign contributions.

Chairman Houck suggested, considering the many viewpoints expressed regarding the proposed exemption, that it would not be appropriate for the Council to take immediate action on the exemption. He suggested that interested parties should continue to meet and seek common ground regarding the issue and report on their efforts at the next Council meeting.

NEXT MEETING

The next meeting of the Freedom of Information Advisory Council is scheduled for December 3, 2007. Additional information on this meeting and other FOIA Council activities is available on the Council’s website.

Chairman:
The Hon. R. Edward Houck

For information, contact:
Maria Everett, Alan Gernhardt, DLS Staff

Website:
http://dls.state.va.us/foiacouncil.htm

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