HD30 - Report of the Virginia Freedom of Information Advisory Council

Executive Summary:
"Finding that the creation of a small, independent office that emphasized the importance of training, the quick resolution of FOlA disputes, and the issuance of nonbinding, advisory opinions were both feasible and desirable, the joint subcommittee recommended to the 2000 Session of the General Assembly the creation of the Virginia Freedom of Information Advisory Council (i) to assist the citizens of the Commonwealth in gaining ready access to records in the custody of public officials and free entry to meetings of public bodies wherein public business is being conducted and (ii) to assist state and local government officials in meeting their statutory obligations through training, publication of educational materials, and quick response to questions. " (*1)

The Freedom of Information Advisory Council (the "Council"), established by the 2000 Session of the General Assembly (*2), officially began operation on July 21, 2000. The Council was created as an advisory council in the legislative branch to encourage and facilitate compliance with the Freedom of Information Act. As directed by statute, the Council is tasked with furnishing, upon request, advisory opinions regarding the Freedom of Information Act (FOIA) to any person or agency of state or local government; conducting training seminars and educational programs for the members and staff of public bodies and other interested persons on the requirements of FOIA; and publishing educational materials on the provisions of FOIA. (*3) The Council is also required to file an annual report on its activities and findings regarding FOIA, including recommendations for changes in the law, to the Governor and the General Assembly.

The Council is composed of 12 members: Delegate Clifton A. "Chip" Woodrum of Roanoke; Senator R. Edward Houck of Spotsylvania; Frank S. Ferguson, designee of the Attorney General; Nolan T. Yelich, Librarian of Virginia; E.M. Miller, Jr., director of the Division of Legislative Services; David Hallock of Richmond, with the law firm of Williams, Mullen, Clark and Dobbins; J. Stewart Bryan, III, of Richmond, chairman, president and chief executive officer of Media General, Inc.; W. Wat Hopkins of Blacksburg, associate professor, Virginia Tech; John B. Edwards of Smithfield, editor of the Smithfield Times; Roger C. Wiley of Richmond, partner, Hefty and Wiley; David E. Anderson, of Richmond, partner, McGuire Woods Battle & Boothe; and Martika A. Parson, of Richmond, with the Office of the Attorney General.

The Division of Legislative Services provides staff support to the Council. By issuing advisory opinions, the Council hopes to resolve disputes by clarifying what the law requires and to guide the future public access practices of state and local government. Although the Council has no authority to mediate disputes, it can be called upon as a resource to help fashion creative solutions in an attempt to remedy a dispute. The success of Council should be judged by the number of disputes that have been resolved, not by the number of opinions issued. The Council is a resource for the public, representatives of state and local government, and members of the media. It is the mission of the Council to give reasonable effect to the intent of the law and to give the right answer regardless of who is asking the question.

Work of the Council

The Council met three times since it began operations in July 2000. At its organizational meeting held on August 15, 2000, in Richmond, the Council agreed that the day-to-day operations of the Council would be vested in its executive director. The Council also discussed (i) conducting training seminars at least annually, (ii) the creation and maintenance of a Council website to make the work of the Council and information related to FOIA generally more accessible to anyone interested in public access issues; and (iii) the publication of educational materials to assist state and local government officials, the media, and citizens in complying with FOIA. A direct telephone line and a toll-free number were established at the Division of Legislative Services to handle FOIA inquiries.

At its second meeting on September 20, 2000, the Council began deliberations on electronic communications (e-mails, etc.) and how they should be treated under FOIA in the context of both open records and open meetings. Are e-mails like paper or are they written conversation? It was suggested that they may be both. The Council reviewed the Library of Virginia's guidelines, adopted pursuant to the Virginia Public Records Act, on electronic communications in the context of records retention.

On November 29, 2000, the Council continued its examination of electronic communications as it relates to public access issues under FOIA. C. Preston Huff, State Records Administrator at the Library of Virginia and Bob Nawrocki, Electronic Records Coordinator at the Library of Virginia, prepared a presentation for the council discussing electronic communications and the Virginia Public Records Act. It was noted that the Public Records Act and the Freedom of Information Act take similar approaches to e-mail. By itself, e-mail is not a record, but is a means of conveying various types of information much like a piece of paper or microfilm. The presentation covered retention schedules for various records, and noted that the same schedules applied to information conveyed via e-mail as paper. Essentially, e-mail should not be treated any differently than paper from a records perspective.

The Council also heard from Bill Wilson, Director of the Division of Legislative Service's Automated Systems, on the nature of electronic communications from a technical perspective (i.e., the distinctions between e-mail, instant messaging, off-line-mail, and chat rooms). Mr. Wilson addressed key highlights of several means of electronic communication. He covered conference calls; private networks; the Internet, which includes e-mail; news and discussion groups; instant messaging; chat rooms; and commercial hybrids. For each of these modes of communications, Mr. Wilson described how they worked and the types of communications for which each might be valuable.

The issues discussed in the presentations posed many interesting albeit difficult questions in the realm of public records and electronic communication's effect on the application of the Freedom of Information Act. The council will continue to examine these issues at future meetings.
(*1) Report of the Joint Subcommittee Studying Virginia's Freedom of Information Act, House Document No. 106 (2000).
(*2) Chapters 917 and 987 of the 2000 Acts of Assembly.
(*3) Article 2 (§ 2.1-346.2 et seq.) of Chapter 21 of Title 2.1 of the Code of Virginia.