HD45 - Annual Report of the Virginia Freedom of Information Advisory Council

Executive Summary:
During this reporting period, December 2003 to December 2004, the Council undertook four studies in addition to the examination of three bills referred by the 2004 Session of the General Assembly. Council-formed subcommittees and workgroups studied public access to meetings of the General Assembly, the feasibility of relaxing requirements for the conduct of electronic communication meetings, public access to geographic information systems (GIS) records, and obsolete technology terminology in FOIA. The work of the Electronic Meetings and Notice Subcommittee resulted in Council-recommended legislation for the 2005 Session of the General Assembly that would relax the requirements for the conduct of electronic communication meetings (telephone and audio/visual meetings) while strengthening the reporting requirements. The enhanced reporting requirements will ensure the receipt of meaningful data to assist in monitoring the occurrences and utility of and public participation in, electronic communication meetings held by state public bodies.

The Council was successful in seeing its 2003 legislative recommendations enacted into law in 2004. Specifically, SB 352 repealed former § 2.2-3705, the lengthy records exemption section of FOIA, and in its place created seven new sections grouping the exemptions by general subject area. The proposed groupings included exemptions of general application; those relating to public safety, administrative investigations, educational records and educational institutions, health and social services, proprietary records and trade secrets; and other exemptions applicable to specifically enumerated public bodies. SB 354, another legislative recommendation of the Council, eliminated the total exclusion of the Sexually Violent Predator Commitment Review Committee from the provisions of FOIA and replaced it with specifically tailored record and meeting exemptions to protect certain Committee records and meetings from public disclosure.

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 Beck v. Shelton, 267 Va 482; 593 S.E.2d 195 (2004). In Beck, the Virginia Supreme Court issued an opinion concerning FOIA with a holding directly relevant to all elected officials in Virginia -- from members of the General Assembly to members of local school boards. Beck drew interest primarily because it is the first authoritative statement of law in Virginia as to whether use of electronic mail ("e-mail") by public officials could constitute a meeting under FOIA. Beck also examined broader issues as to the applicability of FOIA to members-elect of a public body and the parameters of the definition of a "meeting." The Virginia Supreme Court held that FOIA does not apply to members-elect of a public body; that generally, use of e-mail by three or more members of a public body to discuss public business is not a meeting; and that the gathering of three members of a public body at a citizen-organized meeting did not violate FOIA. (*3)

The Council was proactive in developing a FOIA rights and responsibility statement for implementation by state public bodies pursuant to HB 358. (*4) Each Secretary in the Governor's Cabinet was contacted and advised that the Council had developed a model FOIA rights and responsibilities document meeting the requirements of HB 358 for use by state agencies within each Secretariat. Additionally, the Council offered its expertise to assist in customizing the model document to meet the needs of each agency within the respective Secretariats.

The Council continued its commitment to FOIA training. The annual FOIA workshops, approved by the Virginia State Bar for continuing legal education credit, the Department of Criminal Justice Services for law-enforcement credit, and the Virginia School Board Association for academy points, were attended by approximately 450 people statewide, including government officials, media representatives and citizens. In addition to its annual statewide FOIA workshops, the Council was requested to conduct 36 specialized training programs by various groups and agencies of state and local government. This year Council staff added in-house FOIA training at the request of the Office of the Attorney General to the Council's list of Virginia State Bar-approved courses for continuing legal education credit for licensed attorneys.

For this reporting period, the Council, with a staff of two attorneys, responded to 1,216 inquiries. Of these inquiries, 26 resulted in formal, written opinions. The breakdown of requesters of written opinions is as follows: 8 by government officials, 15 by citizens, and 3 by media. The remaining 1,190 requests were for informal opinions, received via telephone and e-mail. Of the 1,190 requests, 616 were made by government officials, 429 by citizens, and 145 by media.
(*3) Excerpted from the Division of Legislative Services' Virginia Legislative Issue Brief, No. 37, March 2004, written by Lisa Wallmeyer and Maria J.K. Everett.
(*4) HB 358 requires all state public bodies created in the executive branch of state government and subject to FOIA to make available certain information to the public upon request and to post such information on the Internet, including: (i) a plain English explanation of the rights of a requester under FOIA, the procedures to obtain public records from the public body, and the responsibilities of the public body in complying with FOIA; (ii) contact information for the person designated by the public body to (a) assist a requester in making a request for records or (b) respond to requests for public records; and (iii) any policy the public body has concerning the type of public records it routinely withholds from release as permitted by FOIA.