HD105 - Virginia Freedom of Information Advisory Council - December 2005


Executive Summary:
INTRODUCTION

Established by the 2000 Session of the General Assembly (*1), the Virginia Freedom of Information Advisory Council (the “Council”) was created as an advisory council in the legislative branch of state government to encourage and facilitate compliance with the Freedom of Information Act (FOIA). As directed by statute, the Council is tasked with furnishing advisory opinions concerning FOIA upon request of 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 (*2). 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, including one member of the House of Delegates; one member of the Senate of Virginia; the Attorney General or his designee; the Librarian of Virginia; the director of the Division of Legislative Services; one representative of local government; two representatives of the news media; and four citizens.

The Council provides guidance to those seeking assistance in the application of FOIA, but cannot compel the production of documents or issue orders. By rendering 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 agencies. Although the Council has no authority to mediate disputes, it may be called upon as a resource to assist in the resolution of disputes and keep the parties in compliance with FOIA. In fulfilling its statutory charge, the Council strives to keep abreast of trends, developments in judicial decisions, and emerging issues. The Council serves as a forum for the discussion, study, and resolution of FOIA and related public access issues and for its application of sound public policy considerations to resolve disputes and clarify ambiguities in the law. Serving as an ombudsman, the Council is a resource for the public, representatives of state and local government, and members of the media.

EXECUTIVE SUMMARY

During this reporting period, December 1, 2004 to December 1, 2005, the Council undertook two studies resulting from the examination of three bills referred to the Council by the 2005 Session of the General Assembly (*3) that did not advance during the 2005 legislative session. Council-formed subcommittees included a PPEA/PPTA (*4) Subcommittee to study the issues raised by HB 2672 and an Electronic Meetings Subcommittee to review the issues raised by HB 2670. HB 2672 (Delegate Plum) would have amended an existing meeting exemption to allow for closed meetings to discuss records exempt from public disclosure relating to the Public-Private Education Facilities and Infrastructure Act (PPEA). The PPEA/PPTA Subcommittee, while not recommending HB 2672 as written, examined the concern that the current record exemption for PPEA and PPTA proposals was being improperly applied, resulting in the withholding of more records than is authorized under the current FOIA (*5) exemption. The work of the PPEA/PPTA Subcommittee resulted in recommended legislation to the Council for the 2006 Session of the General Assembly that would (i) clarify what PPEA/PPTA records are exempt under FOIA, (ii) require a formalized process between a public body and private entity to designate trade secrets, financial records, and other records submitted by a private entity to protect the financial interest or competitive position of the parties, and (iii) make conceptual proposals and proposed interim and/or comprehensive agreements publicly available before such agreements become binding. HB 2760 (Delegate Reese) would have allowed local public bodies to conduct meetings under FOIA through electronic communication means (telephone or audio/visual) (*6). Currently, only state public bodies may conduct meetings in this manner. The Electronic Meetings Subcommittee examined the feasibility of expanding the authorization for the conduct of electronic communication meetings to local public bodies and voted not to recommend HB 2760 in light of the significant relaxation of the procedural requirements made to § 2.2-3708 by the 2005 Session of the General Assembly. Further, the Electronic Meetings Subcommittee recommended that the issue be revisited in 2006 after some experience with the new rules governing electronic meetings.

As of this writing, the Council is considering two pieces of legislation to recommend to the 2006 Session of the General Assembly. (*7) The first legislative proposal would add a mandated fifth response to a FOIA request--the requested records do not exist or cannot be located after diligent search. Currently under FOIA, a public body is under no obligation to create records that do not exist in response to a specific request nor is a public body required to respond to a requester if the requested record does not exist or cannot be found. The lack of a required response in these instances leads to confusion and exacerbates any feelings of distrust. The Council, in a written opinion (AO-16-04) has previously opined that a public body should make this written response where applicable in order to avoid confusion and frustration on the part of the requester. The second legislative proposal relates to public access to procurement records under the PPEA and PPTA, discussed above.

The Council was successful in seeing its 2005 legislative recommendation enacted into law in 2005. Specifically, SB 711 (Houck), recommended by the Council resulted in significant relaxation of the procedural rules for the conduct of electronic meetings (*8) by state public bodies, including reduced notice of such meetings, elimination of the limitation of the number of meetings that may be conducted electronically, and elimination of the requirement that an audio or audio/visual recording of any such meeting be retained. SB 711 was incorporated into the nearly-identical bill recommended by the Joint Commission on Technology and Science (JCOTS), SB 1196 (Newman). SB 1196/SB711 passed as a joint recommendation of the Council and JCOTS.

The Council continued to monitor Virginia Supreme Court decisions relating to FOIA. In Cartwright v. Commonwealth Transportation Commissioner of Virginia, 270 Va. 58; 613 S. E. 2d 449; 2005 Va LEXIS 62, decided June 9, 2005, the issue before the court was whether the circuit court (in Chesapeake) erred in denying a petition for a writ of mandamus (*9) brought in accordance with FOIA (§ 2.2-3713) on the ground that the petitioner had an adequate remedy at law. The Supreme Court noted that this was the first time that it had considered whether a writ of mandamus filed as specifically authorized in FOIA may be denied because of the availability of another adequate remedy at law. The facts that gave rise to the case involved a FOIA request made by a citizen for particular documents prepared by the Virginia Department of Transportation (VDOT). The FOIA request was denied. The Court held that the circuit court erred in denying the petition for mandamus. In its decision, the Court stated, "We hold that a citizen alleging a violation of the rights and privileges afforded by the FOIA and seeking relief by mandamus pursuant to Code § 2.2-3713 (A) is not required to prove a lack of adequate remedy at law, nor can the mandamus proceeding be barred on the ground that there may be some other remedy at law available."

The Council also kept abreast of the ongoing FOIA disputes between Lee Albright, a Nelson County citizen, and the Virginia Department of Game and Inland Fisheries (VDGIF). Mr. Albright advised the Council of his attempts to get records from VDGIF and of the need to file lawsuits to gain access to the requested records. He discussed the favorable outcome of his most recent FOIA suit against VDGIF for violation of FOIA. Mr. Albright indicated that he had received advisory opinions from the Council on this issue, but unfortunately, those opinions did not seem to influence the Department's actions. Mr. Albright expressed concern that a lawsuit was the only remedy under FOIA to force a public body to comply with the law. The members of the Council shared Mr. Albright's concern that citizens should not have to endure the difficulties Mr. Albright has encountered, especially in light of the mandatory disclosure requirements of FOIA. The Council examined the issue of whether FOIA should be amended to provide additional remedies for violation (*10). The Council determined that no action was required as the occurrence was an aberration when considered as a whole and that ultimately, the remedies available under FOIA proved sufficient to redress violations committed by a public body thereby reaffirming the citizens' right of access to government records.

The Council continued its commitment to developing and updating quality educational materials on the application and interpretation of FOIA for dissemination to the public. This year, the Council developed two new guides to ensure compliance with the provisions of FOIA concerning allowable charges for record production and a primer on conducting electronic meetings. "Taking the Shock out of FOIA Charges; a guide to allowable charges for record production under the Freedom of Information Act" attempts to provide much-needed guidance on how to correctly assess charges under FOIA to ensure compliance with the letter of the law as well as the spirit of the law. This new pamphlet served as the basis for a training segment on charges at the 2005 FOIA Workshops. The primer on electronic meetings (teleconferencing and audio/visual) provided the user with a "how to" guide to comply with the requirements for the conduct of these technology-based meetings. Both new guides are available on the Council's website.

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 held in Abingdon, Harrisonburg, Fairfax, Richmond and Norfolk and reached approximately 350 persons statewide, including government officials, media representatives and citizens. After conducting annual statewide FOIA workshops in each of the six years since the Council's creation in 2000, the Council viewed declining attendance over the last two years as a sign that its basic training mission had been successfully accomplished. The Council welcomed the opportunity to provide other relevant training programs to meet the needs of government officials, the media, and citizens alike. Statewide workshops will continue to be offered in odd-numbered years to provide training to new public officials and employees. In even-numbered years, the Council will provide a forum to address topic-specific issues such as public access in light of HIPPA (*11), the Patriot Act, and other federal and state laws. In addition to the 2005 statewide FOIA workshops, the Council was requested to conduct 47 specialized training programs throughout Virginia for various groups, agencies of state and local government, and others interested in receiving FOIA training. These specialized programs are tailored to meet the needs of the requesting organization and are provided free of charge. This year, the Council is pleased to announce that all of its training programs, whether the annual workshops or specialized programs, have been approved by the Virginia State Bar for continuing legal education credit for licensed attorneys.

For this reporting period, the Council, with a staff of two attorneys, responded to over 1,600 inquiries. Of these inquiries, 16 resulted in formal, written opinions. The breakdown of requesters of written opinions is as follows: 4 by government officials, 11 by citizens, and 1 by media. The remaining 1,652 requests were for informal opinions, received via telephone and e-mail. Of the 1,652 requests, 756 were made by government officials, 687 by citizens, and 209 by media.

March 2005 marked the observance of "Sunshine Week" statewide, which resulted in various articles and reports by print and broadcast media to inform the public of its right to know. As a result of the 2005 "Sunshine Week," there has been increased awareness of the Council, its role, and FOIA generally. Virginia is ranked as one of the top ten states for effective FOIA laws. Plans for a 2006 Sunshine Week are being made and in 2006, will include active participation by the Council to raise the public's awareness of its right to know about the operation of government.
_______________________________
(*1) Chapters 917 and 987 of the 2000 Acts of Assembly.
(*2) Chapter 21 (§ 30-178 et seq.) of Title 30 of the Code of Virginia.
(*3) HB 1733 (Delegate Cosgrove), HB 2672 (Delegate Plum), and HB 2760 (Delegate Reese).
(*4) The Public-Private Education Facilities and Infrastructure Act of 2002, (§ 56-575.1 et seq.) and the Public-Private Transportation Act of 1995, (§ 56-556 et seq.).
(*5) The Virginia Freedom of Information Act (§ 2.2-3700 et seq.).
(*6) Section 2.2-3708.
(*7) The Council will meet on December 29, 2005 to take final action on its two legislative proposals.
(*8) SB1196/711 reduces the notice required for electronic communication meetings from 30 days to seven working days. The bill also (i) eliminates the 25 percent limitation on the number of electronic meetings held annually; (ii) eliminates the requirement that an audio or audio/visual recording be made of the electronic communication meeting, but retains the requirement that minutes be taken pursuant to § 2.2-3707; (iii) allows for the conduct of closed meetings during electronic meetings; (iv) changes the annual reporting requirement from the Virginia Information Technology Agency to the Virginia Freedom of Information Advisory Council and the Joint Commission on Technology and Science; and (v) expands the type of information required to be reported. The bill specifies that regular, special, or reconvened sessions of the General Assembly held pursuant Article IV, Section 6 of the Constitution of Virginia are not meetings for purposes of the electronic communication meeting provisions. The bill also defines "electronic communication means."
(*9) Writ of mandamus is used to compel a public official to perform a ministerial duty imposed on him by law.
(*10) Excerpted from a memorandum written by Alan Gernhardt, Staff Attorney to the Council dated August 31, 2005 detailing the experiences of a citizen, Lee Albright, in seeking records from the Virginia Department of Game and Inland Fisheries.
(*11) The federal Health Insurance Portability and Accountability Act.