HD83 - Annual Report on the Virginia Freedom of Information Advisory Council


Executive Summary:
FOIA was the subject of extensive legislative activity during the 2006 Regular and Special Sessions. The General Assembly passed a total of 16 bills amending FOIA in 2006. Fifteen of those bills were passed during the 2006 Regular Session; one was passed during the 2006 Special Session I. Of the 16 bills SB 443 that created both a new record and a new meeting exemption was counted only once for the purposes of the total 2006 FOIA bill count., seven bills created five new record exemptions to FOIA and four bills added three new closed meeting exemptions. In addition, six other bills amended existing provisions of FOIA. A more detailed report of the bills passed during the 2006 sessions is available on the Council's website.

SB 76 (Houck), a recommendation of the Council, was passed by the 2006 Regular Session and ensured greater public access to procurement records under the PPEA and PPTA The Public-Private Education Facilities and Infrastructure Act of 2002 and the Public-Private Transportation Act of 1995. . However, during the 2006 Special Session, SB 5011 was passed, which altered the Council's recommendation by expanding the FOIA exemption recommended by the Council in SB 76. SB 5011 also allowed procurement records under the PPTA to be withheld even after a comprehensive agreement has been entered into, if the process of bargaining or other interim agreements related to the qualifying transportation facility or all phases or aspects of the comprehensive agreement are not complete. The provisions of SB 5011, however, will expire on July 1, 2007. By design, the sunset provision was added to allow the Council time to revisit the issue during 2006 and recommend a permanent resolution. As a result, the PPEA/PPTA subcommittee was continued by the Council to examine the issues raised by SB 5011.

In addition to the PPEA/PPTA Subcommittee, the Council continued the Electronic Communication Meetings Subcommittee to examine the issues raised by SB 465 (Edwards), which bill was referred to the Council by the 2006 General Assembly for further study. The Council appointed a new subcommittee to recommend final resolution of the issue concerning a required fifth response for FOIA requests--an issue that has been before the Council since 2005. Finally, the Council appointed a subcommittee to review a request by the Virginia Retirement System (VRS) to exempt from public disclosure records concerning (i) internal deliberations of or decisions by the retirement system on the pursuit of particular investment strategies, or the selection or termination of investment managers, prior to the execution of such investment strategies or the selection or termination of such managers and (ii) certain financial and investment information submitted to VRS by entities with which VRS has subscription or other agreements for investment purposes.

The work of the PPEA/PPTA Subcommittee during this reporting period December 1, 2005 through December 1, 2006. resulted in Council-recommended legislation to the 2007 Session of the General Assembly that would provide a FOIA exemption for records prepared by the responsible public entity, its staff, outside advisors, or consultants exclusively for the evaluation and negotiation of proposals filed under the PPTA or PPEA, where if such records were made public prior to or after the execution of an interim or a comprehensive agreement, the financial interest or bargaining position of the public entity would be adversely affected; an exemption the Virginia Department of Transportation insisted it needed to protect its bargaining position. In addition, the Council-recommended legislation adds a closed meeting exemption in FOIA for any independent review panel appointed to review information and advise the responsible public entity concerning PPTA records.

SB 465 (Edwards), introduced during the 2006 Regular Session, would have clarified that political subdivisions of the Commonwealth, except any unit of local government, are authorized to conduct electronic communication meetings § 2.2-3708 of the Code of Virginia. under FOIA. The Electronic Meetings Subcommittee was continued in order to examine this issue as well as the feasibility of expanding authority for the conduct of electronic meetings to regional public bodies. In reconciling the SB 465 issue, the Subcommittee decided that it was best resolved by rewriting the applicability portion of § 2.2-3708. In studying regional public bodies and electronic meetings, the Subcommittee wrestled with how to define the term regional public body in a way that would make the use of technology available for these public bodies without eroding open meeting principles. The subcommittee considered defining regional public bodies in terms of distance between the participating localities; for example, four or more counties or cities that are separated by at least 100 miles. After extensive discussions, it became clear to the Subcommittee that a definition based primarily on the distance between the participating localities was unworkable. Additionally, at the request of the Statewide Independent Living Council (SILC), language was considered by the Subcommittee to make allowance for members of public bodies with disabilities to participate in meetings by electronic means. Based on its extensive deliberations on the above noted issues, the Electronic Meetings Subcommittee recommended (i) reducing the notice requirement for electronic communication meetings from seven to three working days, (ii) allowing a member of a public body to participate in a meeting through electronic communication means from a remote location that is not open to the public in the event of an emergency, temporary or permanent disability or other medical condition, or when a member of a regional public body resides more than 60 miles from the primary meeting location For a member to participate in the above described manner, a quorum of the public body must be physically assembled at the primary or central meeting location and that the public body make arrangements for the voice of the remote participant to be heard by all persons at the primary or central meeting location, and (iii) clarifying that political subdivisions, other than units of local government (i.e. school boards, boards of supervisors, etc), may conduct electronic meetings. The Council voted to recommend the subcommittee's draft to the 2007 Session of the General Assembly.

The Fifth Response Subcommittee recommended legislation that would add a fifth response--the requested records do not exist or cannot be located-- to the list of responses a public body must make in responding to a FOIA request. 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. Clearly, not responding in these instances, even though not currently required, does little to ensure the public trust in government. The Council recommends that legislation be introduced in 2007 that makes four primary changes to existing law. First, the term "custodian" is recommended to be removed from subsection § 2.2-3704(B). This change is being proposed because the term "custodian" is not defined in FOIA, and use of the term can lead to confusion regarding who is responsible for responding to a records request. Second, to change the presentation format of the responses to clarify unequivocally that if the public body is going to provide records in response to a request, it must do so within five working days of receipt of the request. Third, to add a fifth response allowing public bodies to indicate that the requested records do not exist or cannot be found. This portion of the recommendation also provides that if a public body has knowledge of where the records may be found (i.e., they are held by a different public body), it shall so inform the requester. Fourth, a public body may petition a circuit court for additional time to respond to a FOIA request where the request would require an extraordinarily lengthy search and a response by the public body within the time required by FOIA will prevent the public body from meeting its operational responsibilities.

The VRS Subcommittee met with VRS personnel and other interested persons, including the Virginia Press Association, to discuss the exemptions requested by VRS. Consensus was reached by all parties to the extent that the exemption, if approved, should be placed within FOIA rather than in VRS's basic law, that the exemption should be specific to VRS and local retirement systems, and that there should also be a corresponding open meetings exemption for discussion of such records by the VRS Board of Trustees. Neither the VRS Subcommittee nor the Council, however, made any policy recommendations or endorsements concerning the VRS draft.

The Council continued to monitor Supreme Court of Virginia decisions relating to FOIA. In the case of "William F. Shaw v. John T. Casteen, et al," William Shaw, a citizen of Louisa County, brought a petition for mandamus against the University of Virginia (the University) after the University denied his request for public records. The petition was filed in the Circuit Court of Louisa County, where Mr. Shaw resides, pursuant to subsection B of § 2.2-3713 (venue against state entities). The Circuit Court dismissed the petition on grounds that venue was improper. Mr. Shaw moved for a rehearing, which the Circuit Court denied. It appears that the Circuit Court determined that the University is not a state agency in initially dismissing the petition. In denying the motion to rehear, it appears that the Circuit Court found that because boards of visitors of public institutions of higher education are specifically mentioned in the definition of "public body" in § 2.2-3701, the University could only be sued under subsection A of § 2.2-3713 (venue against local public bodies), as that subsection uses the term "public body" whereas subsection B does not use the term "public body." Mr. Shaw appealed to the Supreme Court of Virginia; the Supreme Court refused his petition for appeal, finding no reversible error in the Circuit Court's judgment. The Council recommends legislation to the 2007 Session of the General Assembly to clarify the venue provisions for FOIA petitions in order to prevent such a situation from arising in the future. Additionally, the Council recommends clarifying venue in the case of a FOIA petition against a regional public body.

On September 15, 2006, the Supreme Court of Virginia published its unanimous decision in the case of "White Dog Publishing v. Culpeper County Board of Supervisors." The Supreme Court found that in closing a meeting to the public, the Culpeper County Board of Supervisors ("the Board") had improperly invoked the contract negotiations exemption, in violation of the FOIA Code of Virginia § 2.2-3711(A) (30).. This closed meeting exemption was added to FOIA in 2003 as an exemption to protect a public body's bargaining position and negotiating strategy in contractual matters, in order to ensure good stewardship and best use of the public money. Note that the contract negotiations exemption was drafted originally as an exemption of general application, as opposed to the majority of FOIA exemptions which are both agency and conduct specific. The Court's decision is the first interpreting this closed meeting exemption and sets precedent regarding the scope of the exemption and the type of contract negotiation discussions allowed to be held in closed meetings. While this decision will likely impact all public bodies in the Commonwealth, it will be especially relevant in the context of local school construction projects. Excerpted from the Division of Legislative Services' Virginia Legislative Issue Brief, No. 44, October 2006, written by Alan Gernhardt and Maria J.K. Everett. An issue brief that discusses the impact of the Court's decision is posted on the Council's website.

The Council continued its commitment to FOIA training. The Council welcomes the opportunity to provide FOIA training programs and views its training mission as its most important duty. During 2006, the Council conducted 55 FOIA training programs throughout Virginia at the request of state and local government officials, the media, and citizens. These training programs are tailored to meet the needs of the requesting organization and are provided free of charge. All Council-sponsored training programs, whether the statewide workshops or specialized programs, are 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 approximately 1,751 inquiries. Of these inquiries, 10 resulted in formal, written opinions. The breakdown of requesters of written opinions is as follows: four by government officials and six by citizens. The remaining 1,741 requests were for informal opinions, received via telephone and e-mail. Of the 1,741 requests, 849 were made by government officials, 670 by citizens, and 232 by media.

With the passage of SJR 170 during the 2006 Regular Session designating March 16, in 2006 and in each succeeding year, as Freedom of Information Day in Virginia, the General Assembly renewed its commitment to open government principles. Virginia is ranked as one of the top ten states for effective FOIA laws. March 2006 also marked the continued observance of "Sunshine Week" statewide, which includes publication of numerous articles and reports by print and broadcast media to inform the public of its right to know. Because of the annual advent of "Sunshine Week", awareness of the Council, its role, and FOIA generally has increased. This is evident by the ever-increasing number of requests to the Council for advisory opinions and other assistance. On March 10, 2006, in concert with the Virginia Press Association, the Virginia Association of Broadcasters, and VCOG, the Council sponsored a "Sunshine Reception" in the General Assembly Building to help kick off Sunshine Week that began on March 13, 2006. The reception was attended by approximately 85 people, including 25 legislators, and provided attendees with various educational materials along with breakfast, sunshine cookies, and open government bracelets. The Council looks forward to commemorating Freedom of Information Day in 2007 and welcomes the opportunity to host another sunshine reception to highlight the importance of open government practices in keeping government accountable to the public it serves, thereby increasing the public trust.