HD17 - Report of the Virginia Freedom of Information Advisory Council - December 2009


Executive Summary:
The Council continues to fulfill its role to the Virginia General Assembly by serving as a clearinghouse for public access issues. For the ninth straight year, the Council has conducted in-depth reviews of legislation concerning the FOIA and other public access issues referred to it by the General Assembly. In 2009, five bills were referred to the Council by the General Assembly for further study. (1*)

The Personal Identifying Information Subcommittee (PII Subcommittee), created in 2007, continued its work on public access to personal identifying information contained in public records, including Social Security Numbers (SSNs), credit card and other financial account information, and individual citizens' home addresses, telephone numbers, and email addresses. The PII Subcommittee also examined the specific issues raised by HB 2471 (Hugo), HB 2630 (Crockett-Stark), and SB 880 (Stuart). HB 2471 would have eliminated the requirement for disclosure of the names of individual teachers in response to a request for the official salary or rate of pay of employees of a local school board. The PII Subcommittee recommended no action be taken on HB 2471 on the basis that protecting the names of only one segment of public employees was not good public policy. This assessment was also shared by the Virginia Municipal League, the Virginia Association of Counties, the Virginia Coalition for Open Government, and the Virginia Press Association. HB 2630 (Crockett-Stark) would have allowed a law-enforcement officer to request that personal information about him be withheld from disclosure in public records. For purposes of the HB 2630, "personal information" included the officer's name, social security number, address, phone number, and any other information that could be used to physically locate the officer. Upon further investigation, the PII Subcommittee learned that the issue stemmed from the online publication of such personal information as contained in court documents and real estate assessment records. While the PII Subcommittee felt that the overall issue was of some concern, FOIA, itself, does not require the posting of any information on the internet, except for state executive branch meeting notices and minutes. As a result, the PII Subcommittee recommended no action be taken on HB 2630 as online publication of this information is required pursuant to other laws and not dictated by FOIA, and therefore outside the purview of the Council's authority. SB 1332 (Cuccinelli) would have included as public bodies for the purposes of FOIA any private entity that operates, manages, or supervises any portion of the state highway system and receives funding from the Commonwealth or any of its political subdivisions. No action was recommended on SB 1332. Finally, SB 880 would have exempted from public disclosure personal information, as defined in § 2.2-3801, of individual applicants for or holders of any hunting, fishing, boating, or trapping license issued by an agent of the Department, provided that such individuals had requested that the Department not disclose such information. Given the enactment of the Protection of Social Security Numbers Act (§ 2.2-3815 et seq.) (c. 213 of the Acts of Assembly of 2009), SSNs are now protected and the portion of this bill dealing with SSNs has been resolved in favor of protecting the first five digits of a SSN. The PII Subcommittee did, however, recommend an exemption of general application in FOIA that protects the credit card, debit card, routing numbers, and other account information of private persons and public bodies with a financial institution. The Council voted unanimously to approve the PII Subcommittee's draft legislation and recommend it to the 2010 Session of the General Assembly.

The Public Records Subcommittee was established in 2009 to examine the issues raised by HB 2421 (May), which would have amended the definition of "public records" in FOIA. Delegate May had introduced the bill on behalf of Loudoun County after several FOIA court cases where the definition of "public records" was at issue. (*2) In summary, a citizen sought records of all communications, including all electronic mail messages (email), between several County Supervisors and certain other individuals. The Supervisors provided some records but withheld personal emails, asserting that they were not public records because they were not in the transaction of public business. The citizen brought FOIA petitions seeking all of the Supervisors' records to and from the named individuals regardless of whether the contents were asserted to be personal in nature. At the general district court level, it was held that the Supervisors in question must turn over all of their electronic mail messages, including those that the Supervisors asserted were not in the transaction of public business. On appeal the circuit court indicated that records not in the transaction of public business were not public records subject to FOIA, but the Supervisors would have to create a log indicating what records were being withheld. The log created was to be in sufficient detail that the court could ascertain whether the withheld records were in fact matters in the transaction of public business or not. Further appeals and the FOIA requests themselves were withdrawn by agreement with the requester, without a final order being issued by the circuit court. Delegate May indicated that the intent was not to change existing law, but to clarify it. As a result of the Subcommittee's deliberations, Delegate May withdrew the bill. The Subcommittee, however, recommended that staff develop a guidance document that would clarify the definition of "public record" to eliminate any confusion regarding what records are and are not subject to disclosure under FOIA. The Council voted unanimously to approve the Subcommittee's recommendation. Finally, the Council unanimously agreed to technical amendments to the GDCDPA, with the concurrence of the Office of the Attorney General to clarify the date when SSNs could no longer be collected/required at the state level.

The Council continued to monitor Virginia court decisions relating to FOIA. In the spring of 2009, the United States District Court for the Eastern District of Virginia heard the case of McBurney v. McDonnell (Case No. 3:2009cv44). In this consolidated case, three out-of-state plaintiffs challenged on federal constitutional grounds (privileges and immunities) the provisions of FOIA granting access rights to Virginia citizens. On April 29, 2009, the Court entered an order dismissing the claims of the three out-of-state plaintiffs on procedural grounds. (*3) The McBurney case followed a 2006 decision of the Third Circuit Court of Appeals (*4) that upheld a decision of the federal District Court for the District of Delaware, (*5) holding that the limitation of rights under Delaware's FOIA law to Delaware citizens violates the Privileges and Immunities Clause of the Constitution of the United States. The District Court found that the law violated two rights of the requester under the Privileges and Immunities Clause: (1) his right to pursue a "common calling" as a journalist, and (2) his right to participate in the political process. The Circuit Court did not consider the "common calling" ground. Instead, in a three-step analysis the Circuit Court (i) found that participation in the national political process was a fundamental right protected by the Privileges and Immunities Clause, (ii) found that Delaware's stated interest in defining its political community and strengthening the bond between its citizens and government was a substantial interest, and (iii) found that Delaware's stated interest was not furthered by limiting access to public records to Delaware citizens. Finding that the citizenship limitation did not further a substantial interest and did impair a fundamental right, the Circuit Court in the Lee v. Minner case held that limitation to be unconstitutional.

The Council continued its commitment to providing FOIA training. The Council views its training mission as its most important duty and welcomes every opportunity to provide FOIA training programs. During 2009, Council staff conducted 54 FOIA training programs throughout Virginia at the request of state and local government officials, the media, and citizens. 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 2009, the Council conducted its statewide FOIA workshops in five locations--Richmond, Staunton, Abingdon, Suffolk, and Manassas. Due to the demand for FOIA training in the seat of government, the Council held two workshops in Richmond. Concerned about the appropriateness of conducting these workshops given the current budget constraints faced by state and local officials, the Council reduced the registration fee from $50.00 to $35.00. In addition to Virginia State Bar continuing legal education credit, these workshops are also pre-approved by 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 2009 statewide FOIA workshops.

For this reporting period, the Council, with a staff of two attorneys, responded to 1,691 inquiries. Of these inquiries, 13 resulted in formal, written opinions. The breakdown of requesters of written opinions is as follows: three by government officials, none by media representatives, and ten by citizens. The remaining requests were for informal opinions, received via telephone and e-mail. Of these requests, 910 were made by government officials, 618 by citizens, and 150 by media. Over the past several years, the Council has seen an increase in the number of informal opinion requests as compared to requests for formal written opinions. This continuing trend appears to stem from the Council's reputation as a creditable source for FOIA guidance before disputes arise and the reliability of its informal opinions.

FOIA was again the subject of significant legislative activity in the 2009 Session. The General Assembly passed a total of 19 bills amending FOIA. Two bills amending FOIA were passed as recommendations of the Council: SB 1316 (Houck), which strikes the requirement that state agencies publish annually an index of computer databases and amends the requirement to publish a statement of rights and responsibilities to ensure that the public can find out generally what types of public records a public body has and what exemptions may apply to those records, and SB 1319 (Houck), which clarifies the existing requirement that meeting minutes be in writing. Additionally, SB 1317 (Houck), concerning certain electronic meetings held by the Air Pollution Control Board and the State Water Control Board, also passed as a recommendation of the Council. The General Assembly also passed SB 1318 (Houck) and HB 2426 (May), extending the implementation date for the prohibition against collecting an individual's SSN under the Government Data Collection and Dissemination Practices Act -- a recommendation of the Council and the Joint Commission on Technology and Science. Finally, the General Assembly also passed HB 2144 (Nutter), concerning access to concealed carry handgun permits. The language of HB 2144 was identical to SB 529 (Houck), which was introduced as a recommendation of the Council in the 2008 Regular Session. SB 529 did not pass at that time, but was referred back to the Council for further study, after which the substance of the bill was again recommended by the Council for 2009. A more detailed report of the bills discussed above and those FOIA and other public access bills passed during the 2009 Session appears on the Council's website and is attached as Appendix E to the Council's 2009 Annual Report.
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(*1) SB 880 (Stuart); Department of Game and Inland Fisheries; disclosure of official records; exceptions. Provides that records of the Department shall be subject to the disclosure provisions of the Freedom of Information Act, except that personal information, as defined in § 2.2-3801, of individual applicants for or holders of any hunting, fishing, boating, or trapping license issued by an agent of the Department shall be withheld from public disclosure, provided that such individuals have requested that the Department not disclose such information. However, statistical summaries, abstracts, or other records containing information in an aggregate form that does not identify individual applicants or licensees shall be disclosed. The bill provides, however, that such information may be released (i) in accordance with a proper judicial order, (ii) to any law-enforcement agency, officer, or authorized agent thereof acting in the performance of official law-enforcement duties, or (iii) to any person who is the subject of the record.

SB 1332 (Cuccinelli); Private entities operating, managing, or supervising any portion of the state highway system. Provides that a private entity that operates, manages, or supervises any portion of the state highway system and receives funding from the Commonwealth or any of its political subdivisions shall be considered a public body for purposes of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.) of the Code of Virginia as it relates to that portion of the private entity's business operations responsible for operating, managing, or supervising the portion of the state highway system.

HB 2421 (May); Freedom of Information Act; definition of public record. Clarifies that the definition of public record does not include correspondence, messages or other records or portions thereof created or received by a public employee, appointee or officer that relate to personal matters and do not address public business; however such records may be disclosed in the discretion of the custodian.

HB 2471 (Hugo); Freedom of Information Act; salary records of teachers. Provides that the disclosure of the names of individual teachers is not required under FOIA in response to a request for the official salary or rate of pay of employees of a local school board.

HB 2630 (Crockett-Stark); Law-Enforcement Officers' Privacy Protection Act. Allows a law-enforcement officer to request that personal information about the officer be withheld from disclosure on public records. For purposes of the Act, "personal information" includes the officer's name, social security number, address, phone number, and any other information that could be used to physically locate the officer.

(*2) Va. Code § 2.2-3701 defines "public records" to mean "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." [Emphasis added.]
(*3) The Court held that the three-out-of-state plaintiff's lacked standing to bring the claims and improperly named the Attorney General as a party to the action.
(*4) Lee v. Minner, 458 F.3d 194 (3d Cir. 2006).
(*5) Lee v. Minner, 369 F.Supp.2d 527, 2005 U.S.Dist. LEXIS 8892 (D. Del., 2005).