HD42 - Annual Report of the Virginia Freedom of Information Advisory Council


Executive Summary:
Since the creation of the Freedom of Information Advisory Council (the Council) in 2000, the General Assembly has customarily referred to the Council a number of FOIA and related access bills introduced during each session that require in-depth examination and/or resolution of complex issues. The 2007 Session was no exception and 12 bills were referred to the Council for further study. Three of these bills concerned the conduct of electronic meetings (i.e., teleconferences and audio/visual meetings). The remaining 9 bills, some of which were companion bills (introduced in both chambers) dealt with public access to personal identifying information contained in public records. In response, the Council appointed two subcommittees to study the above-described legislation.

The Electronic Meetings Subcommittee (E-Meetings Subcommittee),(*1) initially formed in 2005 to study issues raised by HB 2760 (Delegate Reese) and continued in 2006 to study SB 465 (Senator Edwards), was again continued to examine the three bills that fell within its purview, namely: HB 2293 (Delegate McClellan), HB 2553 (Delegate Ebbin), and SB 1271 (Senator Whipple). HB 2293 would have permitted local governing bodies and school boards to conduct electronic meetings wherein no public business is transacted (i.e., discussions only). HB 2553 would have allowed local public bodies to conduct electronic meetings under certain conditions when a local state of emergency has been declared. SB 1271 would have removed the requirement for a quorum to be physically assembled when a state public body conducts an electronic meeting. At the unanimous recommendation of the E-Meetings Subcommittee, the Council tabled further consideration of HB 2293 and SB 1271, due in large part to the strong preference for face-to-face meetings believing that they better serve not only the public, but the members of the public body conducting the meeting. The Council continues to believe that face-to-face meetings should be the rule rather than the exception. The Council voted unanimously to recommend a revised draft of HB 2553 to the 2008 Session of the General Assembly. The recommended draft would allow a local public body to meet by electronic means without a physically assembled quorum at a single location when the Governor has declared a state of emergency, the catastrophic nature of the emergency makes it impracticable or unsafe to assemble a quorum in one location, and the purpose of the meeting is to address the emergency. The local public body must also (i) give public notice contemporaneously with the notice given the members, using the best possible methods given the nature of the emergency; (ii) make arrangements for public access to the meeting; and (iii) otherwise comply with the usual rules for electronic meetings.(*2)

The second subcommittee, the Personal Identifying Information Subcommittee (PII Subcommittee) (*3) was formed to examine the remaining nine referred bills. These nine bills covered six different topics, all which, however, dealt with issues involving public access to an individual's personal identifying information contained in public records. (*4) With the advent of the Internet, personal privacy concerns have increased dramatically. Previously, personal privacy was deemed sufficiently protected by the concept of "practical obscurity" in that gaining access to public records, whether in paper or electronic form, required some effort from the requester. Judges and others have recognized the concept of practical obscurity.

The notion that public records are limited by a built-in assumption of 'practical obscurity' was first advanced by the Supreme Court in a case denying a reporter’s request for an FBI rap sheet that compiled conviction records from several states because it would constitute an unwarranted invasion of privacy. Although the individual records were public, the court ruled that they were in a sense protected by the barriers of time and inconvenience involved in collecting them. (*5)

The state of technology today, however, has extensive capabilities. Using computers and sophisticated mathematical techniques, information experts now can discover patterns in data drawn from completely unrelated databases, thus making inferences about details of people’s lives. The 2007 legislation referred to the Council reflects this sentiment. Direction from the Council to the PII Subcommittee reflected the belief, however, that these bills represented a piecemeal approach to this issue and it was the intent of the Council, through the work of the PII Subcommittee, to devise a uniform rule concerning access to personal identifying information after careful consideration of all sides of the issue. The work of the PII Subcommittee included the following bills:

HB 2821 (Delegate Sickles would have provided a general exemption for social security numbers, and was referred to both the FOIA Council and the Joint Commission on Technology and Science (JCOTS);

HB 2558 (Delegate Brink) exempts certain information in rabies vaccination certifications, and was passed with a sunset provision such that it expires July 1, 2008;

HB 3097 (Delegate Cole)/SB 1106 (Senator Chichester) would have exempted certain personal information in constituent correspondence;

HB 3118 (Delegate Carrico)/SB 883 (Senator Deeds) would have exempted certain personal information in licensing records of the Department of Game and Inland Fisheries;

HB 3161 (Delegate D. Marshall)/SB 1404 (Senator Hanger) would have exempted complainant information with respect to violations of local ordinances; and

SB 819 (Senator Cuccinelli) would have provided a general exemption for social security numbers and other personal information.

The Council, jointly with the Social Security Number Subcommittee of the Joint Commission on Technology and Science (JCOTS), examined specifically public access to social security numbers (SSNs) in public records pursuant to HB 2821 and SB 819. Public comment indicated that a FOIA exemption was problematic for certain entities (e.g. print media, data aggregators, private investigators, and others) because of their expressed need for SSNs to verify identity. Further, a FOIA exemption would be harmful to the basic policy of FOIA that motive for a request is immaterial. Thus the discretionary release of a SSN under such an exemption would require the government to ascertain the motive for the request. Additionally, it was argued by privacy advocates that FOIA exemptions are discretionary with the public body having custody of the record and therefore would allow a government entity to release records containing SSNs unless expressly prohibited by some other law. Alternatively, access advocates argued that a FOIA exemption for SSNs, although discretionary, would be treated by government as a prohibition and effectively no records with SSNs would be accessible. Based on the foregoing and recognizing the complexity of the attendant issues, the Council agreed that they would address the over collection issue in legislation for the 2008 Session of the General Assembly. The Council is committed, however, to continuing its examination of public access to SSNs during 2008. The Council, with the concurrence of the JCOTS Subcommittee, has recommended legislation to the 2008 Session that amends the Government Data Collection and Dissemination Practices Act (GDCDPA) by limiting the collection of SSNs by state and local government to those instances where collection of SSNs is required by state or federal law and the collection of SSNs is essential to the mission of the agency. Additionally, the Council, with the concurrence of the JCOTS Subcommittee, has recommended legislation amending the Personal Information Privacy Act (PIPA) (§ 59.1-446 et seq.). This draft clarifies that an individual may disseminate his or her own SSN without violating PIPA. The draft would also apply the prohibitions contained in PIPA on the dissemination of SSNs to those SSNs obtained from public records.(*6) Following up on concerns raised about the constitutionality of this provision, staff presented an outline of the constitutional issues that may come into play should the draft be passed into law. Staff discussed two relevant lines of jurisprudence. First, staff presented a series of cases where laws restricting the publication of truthful information lawfully obtained were consistently struck down as unconstitutional infringements upon citizens' freedoms of speech. Second, staff set forth cases and statutes highlighting the importance of SSNs and the compelling privacy interest in protecting individuals' SSNs. Under the first line of cases, the Supreme Court of the United States has consistently refused to set forth a blanket rule, but has instead held out the possibility that a law restricting the publication or dissemination of truthful information lawfully obtained might be constitutional if it serves to protect a sufficiently compelling state interest. However, in every specific case that has come before it, the Court has struck down such laws as unconstitutional restraints violating the First Amendment right to freedom of speech. None of these cases have specifically addressed the publication or dissemination of SSNs obtained from public records. Other cases from various courts have consistently held that there is a compelling privacy interest in protecting individuals' SSN information. By contrast, there is relatively little public interest in disseminating SSN information obtained from public records that does not otherwise provide greater transparency of government actions. In assessing all these cases together, staff concluded that while the recommended draft could be challenged as an improper prior restraint on freedom of speech under the first line of cases, there is nevertheless an even chance that a court would find the law constitutional because of the compelling interest in protecting SSNs.

Additionally, the Council examined a related issue-- public access to records relating to holders of concealed weapons permits--which was included as part of the PII Subcommittee's work. This issue was not the subject of legislation in the 2007 Session, but came to the attention of the Council following the publication on the Internet of the names and addresses of holders of concealed weapons permits by the Roanoke Times and the resulting controversy stemming from personal privacy concerns. The Roanoke Times obtained the database of such permittees from the Department of State Police. This issue was also the subject of an opinion from the Attorney General. (*7) The Council voted to recommend to the 2008 Session legislation requiring the Department of State Police (DSP) to withhold from pubic disclosure permittee information submitted to the DSP for purposes of entry into the Virginia Criminal Information Network. The proposed draft does contain a limited exception for access by law-enforcement agencies. Records of the names and addresses of holders of concealed weapons permits issued by the DSP, however, to out-of-state persons would be publicly available from DSP. Permittee records will still be open to the public at each circuit court where the permits are issued.

The Council continued to monitor Supreme Court of Virginia decisions relating to FOIA. In the case of Fenter v. Norfolk Airport Authority decided on September 14, 2007, (*8) John Fenter, a Virginia citizen, made multiple requests for records from the Norfolk Airport Authority (the Authority) concerning certain signs near the airport concerning vehicle searches. In response to two of his requests, the Authority referred Mr. Fenter to its attorney and indicated that it had referred his requests to the federal Transportation Safety Administration. The Court held that the Authority had violated FOIA as the responses given by the Authority did not correspond to any of the mandatory responses set forth in FOIA. (*9) The Court also remanded the case for a determination of costs and attorney's fees to be awarded to Mr. Fenter. It is significant to note that prior to filing suit, Mr. Fenter sought an advisory opinion from the Council, issued on May 25, 2006 (AO-05-06), which reached essentially the same conclusion as the Court that the Authority had failed to provide a proper response under FOIA. The Court in its opinion referenced AO-05-06.

The Council continued its commitment to providing FOIA training. The Council views its training mission as its most important duty and welcomes any opportunity to provide FOIA training programs. During 2007, the Council conducted a total of 77 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. In addition, the Council conducted its statewide FOIA workshops, now offered in odd-numbered years, during the period June 11 through June 21, 2007 in Wise, Danville, Staunton, Manassas, Norfolk and Richmond. The workshops were pre-approved by the Virginia State Bar for continuing legal education credit, the Department of Criminal Justice Services for law-enforcement in-service credit, and the Virginia School Board Association for academy points. Approximately 600 persons, including government officials, media representatives and citizens, attended the statewide FOIA workshops. Based on course evaluations, these workshops were well received and met or exceeded attendee expectations.

For this reporting period, the Council, with a staff of two attorneys, responded to approximately 1,708 inquiries. Of these inquiries, 13 resulted in formal, written opinions. The breakdown of requesters of written opinions is as follows: two by government officials, three by media representatives, and eight by citizens. The remaining 1,695 requests were for informal opinions, received via telephone and e-mail. Of these requests, 854 were made by government officials, 674 by citizens, and 167 by media.

FOIA was again the subject of significant legislative activity in the 2007 Session. The General Assembly passed a total of 19 bills amending FOIA in 2007. Of note, four of the 19 bills were recommendations of the Council, specifically: HB 1791 (Griffith), adding an additional response to address situations when a public body receives a request for public records under FOIA but cannot find the requested records or the requested records do not exist; SB 1001 (Houck), addressing various provisions regarding the conduct of electronic communication meetings; SB 1002 (Houck), concerning the release of certain records under the Public-Private Transportation Act of 1995 (PPTA) and the Public-Private Education Facilities and Infrastructure Act of 2002 (PPEA); and SB 1003 (Houck), concerning the venue for FOIA enforcement actions. A more detailed report of the bills passed during the 2007 session appears on the Council's website and is attached to the Council's 2007 annual report as Appendix E.

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 2007 continued the observance of Sunshine Week statewide by publication of numerous articles and reports by print and broadcast media to inform the public of its right to know about the operation of government. Because of the annual advent of Sunshine Week, awareness of the Council, its role, and FOIA generally has increased. This is evident by the number of requests to the Council for advisory opinions, FOIA training, and other assistance. To commemorate Sunshine Week, the Council sponsored, in conjunction with the Virginia Coalition for Open Government, the Virginia Association of Broadcasters, the Virginia Press Association, the Library of Virginia, and the Virginia Library Association, a webcast program entitled "Closed Doors; Open Democracies." This program included national and local experts in FOI laws who discussed denied access at various levels of government and its impact. In addition, the Council's executive director, Maria Everett wrote an op/ed piece about the importance of FOIA for the Richmond Times Dispatch, titled "All of Us Must Do Better." This piece appeared in the Richmond Times Dispatch on March 16, 2007, along with a positive editorial about the work of the FOIA Council. Both pieces are attached to the Council' 2007 annual report as Appendix I. The Council looks forward to commemorating Freedom of Information Day in 2008 and has plans to host another sunshine reception to highlight the importance of government transparency to increase the public trust and keep the government accountable to the public it serves.

____________________________________________________________________________________

(*1) The Electronic Meetings Subcommittee consisted of Council members Edwards (Chair), Senator Houck, Wiley, Miller, Fifer, and Axselle.
(*2) Additionally, the draft bill makes a technical amendment in the definition of "meeting" to include the provisions of § 2.2-3708.1 (added in 2007).
(*3) The Personal Identifying Information Subcommittee consisted of Council members Senator Houck (Chair), Delegate Griffith, Malveaux, Bryan, Edwards, Hopkins, Spencer, and Yelich.
(*4) Public records by definition under FOIA include "all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business." See § 2.2-3701.
(*5) As Public Records Go Online, Some Say They’re Too Public, The New York Times, August 24, 2001.
(*6) This was accomplished by striking certain language in PIPA as it is currently enacted.
(*7) Issued to the Honorable Dave Nutter on April 6, 2007.
(*8) 274 Va. 524, 649 S.E.2d 704.
(*9) Subsection B of § 2.2-3704.