HD106 - Report of the Joint Subcommittee Studying Virginia's Freedom of Information Act

Executive Summary:

House Joint Resolution No. 187, agreed to during the 1998 Session of the General Assembly, established a joint subcommittee to study the Virginia Freedom of Information Act (the Act). As part of the study, the resolved clause in the resolution directed the joint subcommittee to examine other provisions of the Code of Virginia affecting public access to government records and meetings in order to determine whether any revisions to the Act were necessary.

In the first year of study, the joint subcommittee met monthly and endeavored to develop a clearer and easier-to-use Freedom of Information Act -- one that addressed the misunderstandings on the meaning and breadth of the law. The joint subcommittee worked to strike a balance between the public's right of access and the needs of government to function effectively. At the initial meeting of the joint subcommittee, the Virginia Press Association offered a comprehensive redraft of the Freedom of Information Act, which was adopted by the joint subcommittee for use as a vehicle for identifying issues and stimulating discussion. It was not, however, an endorsement of the Virginia Press Association position. An effective initiative of the joint subcommittee was the urging of the formation of an informal work group of interested parties to identify the areas of agreement and disagreement. This initiative provided interested parties with an opportunity to resolve disagreements outside the formal setting of joint subcommittee meetings. All interested parties were invited to participate in work group meetings and this initiative paved the way for informal, yet meaningful dialogue. As a result, the joint subcommittee's 1998 work culminated in an extensive rewrite of the Virginia Freedom of Information Act.

Another initiative of the joint subcommittee was the creation of a study website on the Internet ( http://dls.state.va.us/hjr187.htm) at which all meeting notices, meeting summaries, copies of presentations made to the joint subcommittee, legislative drafts, and other documents and information related to the study were posted. With access to the workings of government at issue, the joint subcommittee felt strongly that its deliberations should have the widest audience possible.

In 1999, the General Assembly continued the study of the Freedom of Information Act by enacting House Joint Resolution No. 501, which directed the joint subcommittee to review current record exemptions for proprietary information and trade secrets, and examine the feasibility of (i) creating a state "sunshine office" to resolve FOIA complaints, conduct training and education seminars, issue opinions or final orders, and offer voluntary mediation of disputes and (ii) including, in the definition of "public body," private foundations that exist solely to support public institutions of higher education.

Questions raised in the first year of study resurfaced in the second year and members of the joint subcommittee again pondered whether the Act was problematic, not in the statute itself, but in its understanding by those who use it. If so, one solution might be the creation of an entity to assist the public in gaining access to public records and meetings. The joint subcommittee spent the majority of its time in the second year deliberating on the creation of such an office.

The remainder of the joint subcommittee's work in the second year focused on the issue of including private foundations as public bodies under the Act. The areas of concern raised with the joint subcommittee included the perception by some that private foundations are encroaching into the realm of the operation of public universities in that they exist solely to support public institutions of higher education and are under strict control of the boards of visitors. The joint subcommittee considered whether these foundations should be included in the Act's definition of a "public body," thereby opening their operations to the same degree to which public bodies are open.

The joint subcommittee again enlisted the work group used during the first year of study to help identify issues and resolve conflicts. The joint subcommittee's website, which proved to be a valuable public access tool, was also continued. The legislative recommendations of the joint subcommittee represent, with few exceptions, the hard work and the compromise of all the parties who participated in this study, namely, the Local Government Attorneys of Virginia, Inc., the Virginia Association of Broadcasters, the Virginia Association of Counties, the Virginia Coalition for Open Government, the Virginia Municipal League, the Virginia Press Association, other state and local government representatives, and the public safety community -- the Association of Chiefs of Police, the Commonwealth Attorneys Council, the Department of State Police, the Virginia Sheriffs' Association, and numerous individual police departments. These groups not only participated in the monthly meetings of the joint subcommittee, but met separately at least as many times to resolve areas of disagreement. All but a few issues were decided in this way. The joint subcommittee was required to decide a small percentage of the issues that the rewrite of FOIA encompassed. This is a credit to the joint subcommittee, the study participants, and their collective hard work. Due in large part to the level of professionalism and recognition that there was an opportunity for shaping the new FOIA law, the parties kept at it and found there was room for compromise. In this way, the parties came to a fuller of understanding of, and respect for, each others' positions.

This report is divided into two parts -- Part I, The First Year of Study, and Part II, The Second Year of Study -- which detail the work of the joint subcommittee. Also attached for the reader's information are a series of FOIA-related stories in the news.