HD20 - Report of the Virginia Freedom of Information Advisory Council


Executive Summary:
During this reporting period, December 2001 through November 2002, the Council was at the forefront of important access-related issues facing both the Commonwealth and the nation occasioned by the tragic events of September 11, 2001. In response, the Council formed a subcommittee to examine the adequacy of current FOIA exemptions to protect the safety of Virginia's citizens and public buildings from terrorist attacks and other threats to the public safety. The Council continued to monitor the treatment of e-mails and other electronic communications in the context of FOIA and saw the enactment by the 2002 Session of the General Assembly of Council-recommended legislation to protect personal information, including e-mail addresses, from release when such information is furnished for the purpose of receiving electronic mail from a public body (HB 731). The Council was also successful in seeing its other legislative recommendations enacted into law in 2002, specifically, HB 173/SB 208 making the Council a permanent agency of state government; HB 700, adding a record and meeting exemption relating to terrorism; and HB 729, clarifying that attorneys for the Commonwealth and other constitutional officers are public bodies as defined under FOIA.

In addition to enacting the legislative recommendations of the Council, the 2002 Session of the General Assembly referred HB 900 to the Council for further study. HB 900 would have authorized any public body subject to FOIA to petition the circuit court for a protective order relieving it, in whole or in part, of its obligations to produce requested records where the request is unreasonable, not made in good faith, or motivated primarily by an intent to abuse, harass, or intimidate the public body. The bill also would have allowed the court to require the requester to pay the reasonable attorney's fees incurred by the public body in obtaining the protective order. In its first meeting after the 2002 Session, the Council created a subcommittee to examine the issues raised by HB 900 and, as is its custom, invited and encouraged participation by any interested person.

The Council also initiated a study to reconcile the open meeting provisions of FOIA with the confidentiality requirements of the Virginia Public Procurement Act. As part of its study, the Council examined the adequacy of current FOIA exemptions to protect from release documents generated during contract negotiations where release during the negotiation stage would adversely affect the bargaining position of a public body.

The Council grappled with the treatment of political caucuses under FOIA in response to the Commonwealth v. Matricardi case wherein FOIA was invoked as a defense to alleged illegal wiretapping activities by the defendant. The defendant claimed that the conference call of certain members of the Democratic Party concerning redistricting was an open meeting under FOIA. Although comment was actively solicited by the Council on this issue from the various caucuses of the General Assembly and other interested parties, no one appeared before the Council nor did the Council receive any comment on this issue. Based on the lack of response and acknowledging the complexity of this and related issues, the Council, by consensus, agreed to suspend their examination of political caucuses until such time it is again brought to the Council's attention.

The Council concluded this reporting period by honoring its former chairman, Delegate Clifton A. "Chip" Woodrum. By resolution of the Council, Delegate Woodrum, the first chairman of the Council, was recognized for his service to the Commonwealth on FOIA-related issues and his leadership in consistently playing an important role in the development of Virginia's Freedom in Information Act.