HD11 - Report of the Virginia Freedom of Information Advisory Council


Executive Summary:
During this reporting period, December 2002 through November 2003, the Council continued to monitor the treatment of e-mails and other electronic communications in the context of FOIA, including following the developments in the case of Shelton v. Beck (2003). In that case, three plaintiffs filed suit in Fredericksburg Circuit Court against five members of the Fredericksburg City Council, alleging 18 illegal meetings under FOIA. The suit alleged that the plaintiffs illegally excluded the public and two City Council members from e-mail and face-to-face discussions of city business. The defendants included the mayor and vice-mayor of the City Council, as well as three newly elected City Council members. At trial, the judge held that one of set of e-mail correspondence violated FOIA. In those groups of e-mail, four of the defendants discussed who should be appointed to the local library board. The judge ruled that the defendants used e-mail to reach a consensus about who to appoint, which should have occurred in an open meeting. The judge dismissed the two other remaining counts involving the use of e-mail. The judge said that in those instances, the defendants did not violate the law because the e-mails were used to gather information only, and not to make a decision. The fourth remaining count involved the attendance of three of the defendants at a meeting arranged by neighborhood residents to discuss traffic problems. The judge found that this gathering did not violate FOIA, because the defendants attended the meeting to hear residents' concerns and obtain information, and not to conduct city business. The case is currently on appeal to the Supreme Court of Virginia.

The Council was successful in seeing its legislative recommendations enacted into law in 2003. Specifically, Senate Bill 737 added a record and meeting exemptions for the negotiation of a public contract by public bodies where disclosure would adversely affect the bargaining position or negotiating strategy of the public body. Senate Bill 738 provided that before processing a request for records, a public body may require the requester to pay any amounts owed to the public body for previous requests for records that remain unpaid 30 days or more after billing.

At the request of the Virginia Press Association, the Council initiated a review of House Bill 2445 and Senate Bill 1149 from the 2003 Session which excluded the Sexually Violent Predator Commitment Review Committee from the provisions of FOIA. It was suggested that instead of excluding the Committee from FOIA completely, an exemption to address the need for the protection of certain Commission records and meetings from public disclosure be created. The Council concurred that perhaps that discussion of this alternative may have been missed during the press of the 2003 Session. The Council appointed a subcommittee that examined the new exclusion at subdivision A 5 of § 2.2-3703. It was noted that with a few exceptions, most public bodies were not wholly excluded from the requirements of FOIA. Instead, most public bodies must exercise narrowly tailored records and meetings exemptions to withhold records and close meetings, following the specific procedures in FOIA. Records and meetings of government agencies are presumed to be open, and an agency must justify which records and meetings require protection from disclosure. The public has an interest and a concern in following the actions of the Committee, and the Committee should have to follow the same procedures as other public bodies for exempting records and meetings.

The Council also initiated a study to examine the appropriateness of reorganizing § 2.2-3705 of FOIA. Section 2.2-3705 is the section that enumerates the various records that may be withheld under the provisions of FOIA. Currently, there are 87 record exemptions enumerated in the section. As a practical matter, inclusion of this section in any piece of legislation expands the size of the bill by 10 or more pages, while the proposed amendment to this section may be only a few sentences. This makes the bill cumbersome and confusing to the public and legislators alike. The Council appointed a subcommittee to begin work. Interested parties were invited to participate in the study, including the Virginia Press Association, the Virginia Municipal League, and the Virginia Coalition for Open Government. Consensus on the proposed outline for the reorganization of § 2.2-3705 was reached. Like a title revision, the reorganization of § 2.2-3705 involved only technical changes and no substantive changes were made to the section. Considerable work was done to ensure the reorganization achieved its purpose of making logical categories for existing record exemptions thereby reducing the size of bills before the General Assembly that contain a FOIA exemption and making the exemption section more user-friendly. Generally, the consensus draft would repeal § 2.2-3705, and create seven new sections grouping the exemptions by general subject area. The proposed groupings would include exemptions of general application, exemptions relating to public safety, exemptions relating to administrative investigations, exemptions relating to educational records and educational institutions, exemptions relating to health and social services, exemptions relating to proprietary records and trade secrets, and exemptions applicable to specific public bodies.

For the period of December 1, 2002, to November 30, 2003, the Council, with a staff of two attorneys, fielded more than 1000 inquiries. Of these inquiries, 24 resulted in formal, written opinions. Through its website, the Council provides increased public awareness of and participation in its work, and publishes, in addition to its written opinions, a variety of educational materials on the application of FOIA. During the past year, the website was visited more than 20,000 times. About 1,300 visitors viewed the educational materials developed by the Council.