HD15 - Report of the Virginia Freedom of Information Advisory Council - December 2010


Executive Summary:
Celebrating its decennial year, the Council continues to fulfill its role to the Virginia General Assembly by serving as a clearinghouse for public access issues, examining in this ten-year period 44 bills referred by the General Assembly. The Council has kept abreast of trends, developments in judicial decisions, and emerging issues related to FOIA and access generally. In its ten year history, the Council has provided more than 13,000 formal and informal advisory opinions to citizens of the Commonwealth, media representatives, and state and local government officials. The Council has also conducted approximately 527 FOIA training programs since its creation. In addition, it is recognized as the forum for evaluating proposed FOIA and related public access legislation. In 2002, the Council implemented an annual legislative preview as part of its regular meeting schedule to provide a forum for the discussion proposed FOIA legislation well in advance of General Assembly Session to facilitate compromise between opposing parties. For a decade, the Council has evaluated the provisions of FOIA to ensure Virginia's commitment to open government while balancing the need to protect the public's negotiating and litigation positions, privacy, and safety. The Council has grappled with myriad issues involving databases, email use and retrieval, Social Security Numbers, concealed handgun permits, secondary publication of public records, public procurement, political caucuses, terrorism prevention, and other public safety measures. The Council also has evaluated the law governing teleconferencing and other meetings by electronic communication means and recommended relaxation of the rules thus allowing state and local governmental entities to avail themselves of technology in situations involving emergencies or medical necessity to facilitate service by persons with disabilities and others on government boards and commissions. Of the 22 Council-initiated legislative recommendations since 2000, all have been enacted by the General Assembly and signed by the Governor into law.

During this reporting period, the Council conducted in-depth reviews of legislation concerning the FOIA and other public access issues referred to it by the General Assembly.
The five bills referred to the Council by the General Assembly and studied by two Council-appointed subcommittees are as follows:

1. HB 449 (Ware, RL)--remedy for public bodies for requester harassment.
2. HB 641 (Armstrong)--extending the right to make FOIA requests in Virginia to U.S. citizens.
3. HB 976/SB147 (Anderson) and (Puller)--proceedings for enforcement; when notice of suit must be filed by petitioner on public body.
4. SB 711 (Edwards)--disclosure of criminal investigative records. (*1)

The Rights and Remedies Subcommittee was responsible for the following bills: HB 449 (Ware, R.L.) (remedy for public bodies for harassment by requesters), HB 641 (Armstrong) (extending the right to make FOIA requests in Virginia to United States citizens), and HB 976 (Anderson)/SB 147 (Puller) (proceedings for enforcement; when notice of suit must be filed by the petitioner on the public body). The Council also directed the Rights and Remedies Subcommittee to develop a plan for proactive training for legislative agencies, committees and commissions, as well as studying other methods to promote access to joint committees of conference for the state budget. The Rights and Remedies Subcommittee consisted of Council members Senator Houck (Chair), Roger Wiley, Frosty Landon, Mary Yancey Spencer, Eric Gregory, George Whitehurst, and Ed Jones. The Subcommittee made the following recommendations that were adopted by the Council.

House Bill 449-- This was not a new issue before the Council. In 2002, the Council studied HB 900, introduced by Delegate Purkey, on the issue of harassment of public bodies by FOIA requesters. At that time, the Council found that harassment was difficult to define and required a determination of the intent behind the request. Because of this, the Council in 2002 took another direction and recommended SB 738 (Houck), which provided that before processing a request for records, a public body may require a requester to pay any amounts owed to the public body for previous FOIA requests that remain unpaid 30 days or more after billing.(*2) With regard to HB 449, it was noted that intentional harassment by FOIA requesters is a much broader problem, albeit infrequent, than just in Powhatan County, which was the basis for the bill. The Subcommittee attempted to find a balanced solution that could not be used by public bodies as a weapon against citizens, but that would account for the substantial expenditure of resources, personnel, and time to respond to requests intended to harass a public body. The Subcommittee also considered novel approaches--like utilizing FOIA charges--as was done in 2002 as a possible solution. Some believed the courts are in the best position to evaluate a given situation. Public comment on this issue by Megan Rhyne of the Virginia Coalition for Open Government (VCOG) revealed an awareness that harassment happens, albeit infrequently, and suggested that the remedy may lie in allowing a public body to petition for more time to respond to the FOIA request. Ginger Stanley of the Virginia Press Association (VPA) noted that the situation in Powhatan County that gave rise to HB 449 was a result of the county not availing itself of the remedies afforded under current FOIA law. She suggested that this one case was based on bad facts and changing the law as a result was a position the VPA could not support. Several state agencies reported that they handle a huge number of FOIA requests with "persistent requesters." In these instances, agencies have gone to court for relief with success. It was noted, however, that this took significant resources and effort to get the desired relief. Nonetheless, there was agreement that one should be concerned about giving the government too much power to enjoin citizens from making FOIA requests. Senator Houck stated that he, like other legislators, was empathetic to public bodies in these instances given the volume of records and the costs to produce them. Virginia's FOIA is silent regarding the number and frequency of requests a single requester may make, and contains no provision addressing harassment. There do not appear to be any reported cases or published opinions specifically addressing this issue in Virginia. As a general rule, a requester cannot violate FOIA by making requests. Other states' FOIA laws were reviewed to ascertain what if any remedies are granted to public bodies when faced with this dilemma. The laws of Colorado, Connecticut, Illinois, Kansas, Kentucky, Tennessee, Texas, and Utah, which have relevant provisions, were examined. (*3) The approaches taken by Kansas and Kentucky--a request may be refused if it places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency--were favored by the Subcommittee. Further inquiry into the success of these laws in addressing the issue was undertaken. Representatives of both states reported that the relevant provisions in their law were not utilized because ultimately an agreement was worked out between the parties.

Further deliberations to fashion a remedy for intended harassment stalled because, while there was stipulation by all parties that harassment did occur, there was no agreement that harassing requests are a problem requiring a legislative fix. Megan Rhyne, VCOG, advised that her concern was the chilling effect on the "good citizen" who doesn't know whether his legitimate request for documents and subsequent requests may be perceived as harassing, when there is no intent to harass. Craig Merritt, representing the VPA, stated that the correct question is not whether people overuse FOIA, acknowledging that they do. Instead the question is whether FOIA is inadequate to address the situation. There was agreement, however, that the threat of being hauled into court by a public body is a bad approach. Because of the lack of consensus, no legislation was proposed.

HB 641-- In 2006 in Delaware, citizenship as a basis for FOIA requests was the subject of a decision of the Third Circuit Court of Appeals (*4) upholding 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 Third Circuit did not consider the "common calling" ground. Instead, in a three-step analysis the Third Circuit (1) found that (i) participation in the national political process was a fundamental right protected by the Privileges and Immunities Clause, (ii) Delaware's stated interest in defining its political community and strengthening the bond between its citizens and government was a substantial interest, and (iii) 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 Third Circuit held that limitation to be unconstitutional. (*6)

While this decision may be influential, it is not binding in Virginia. The Council reviewed a Virginia case on point. 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. (*7) However, on appeal, the United States Court of Appeals for the Fourth Circuit ruled for two of the three plaintiffs, saying they can proceed with their challenge on the merits to the citizens-only provision of FOIA. Oral arguments are scheduled for December 20, 2010.

In discussing HB 641, Council member Wiley stated that he advises his local government clients not to control on the citizenship issue given the ease with which a Virginia requester can be found to make the request. This has been the same advice given by the Council since 2000. Because FOIA does not apply to out-of-state requesters, a public body may take a reasonable time to provide the requested records and require prepayment of any charges assessed in producing the requested records. Council member Spencer agreed and stated that she handles numerous out-of-state FOIA requests on behalf of the Virginia State Bar daily. She stated that most of these requests are from data aggregators and she successfully negotiates a deal with them on their requests. The State Bar usually honors out-of-state requests, but if the records requested are voluminous, they charge for their production. Other state agencies also commented on their experience with out-of-state requests. (*8) A representative of the Department of Medical Assistance Services (DMAS) indicated that DMAS never denied a FOIA request based on citizenship. However, because the number of requests became overwhelming, DMAS began charging for the production of the requested records. A representative of the Department of Motor Vehicles (DMV) states that DMV usually honors out-of-state requests and it is not a big problem for them. VDOT indicated that they also honor out-of-state requests unless the requested records are voluminous. The VPA stated that it opposed the current form of HB 641. VCOG advised that FOIA currently provides tools for public bodies to use; but noted that as drafted, VCOG opposed the reciprocity piece in HB 641 and did not favor any approach that looked at the underlying purpose for the request. Forty-four states do not restrict who may make FOIA requests and there has been no clamoring for changing the law in those states. It was noted that state agencies do better with out-of-state requests than local agencies. Mr. Wiley stated that states may limit access without it being unconstitutional in all instances. He suggested that the solution may be to link out-of-state requests to the prepayment of charges and/or time lines for responding to a FOIA request. The Council agreed that it would be prudent to await the outcome of the McBurney case before considering any legislation. In the meantime, the law can be successfully dealt with following the advice of the Council. By consensus, it was agreed that HB641 as referred to the Council not go forward.

HB 976/SB 147-- This issue was brought before the Council in 2009 by Prince William County Public Schools in response to a specific issue there. The Council had recommended language to resolve the issue of when notice is to be given. However, during the General Assembly Session, Prince William County Public Schools objected to the language. As a result, both bills were again sent to the Council. The difference between the two bills was that in SB 147 notice was to be served on a public body, while in HB 976 notice was to be received by the public body. Mr. Wiley noted that the use of the word "served" means by the sheriff or other process server and that unnecessarily delays the process. Mr. Wiley suggested that notice be given to the public body, but that the length of time before the FOIA suit may be filed be specified. By consensus the Council agreed to recommend the following language to resolve the differences in the bills. "Notwithstanding the provisions of § 8.01-644, the petition for mandamus or injunction shall be heard within seven days of the date when the same is made provided the party against whom the writ is brought has received a copy of the petition at least three working days prior to filing."

The Criminal Investigative Records Subcommittee studied SB 711 (Edwards). The bill would limit the exemption for criminal investigative or prosecution records to those investigations or prosecutions that are ongoing. As a result, criminal investigative and prosecution records would be open to the public after the ongoing criminal investigation or prosecution has become final or has been otherwise terminated, unless jeopardy to any other criminal investigation or prosecution would result. This Subcommittee consisted of Council members Craig Fifer (Chair), Delegate Griffith, E.M. Miller, John Selph, and Sandra Treadway. The Criminal Investigative Records Subcommittee met three times and considered the policy issues raised by SB 711, but could not find common ground for substantive changes. Instead, the subcommittee recommended a redraft of § 2.2-3706 (access to criminal records) intended to make the section easier to read and understand without introducing any substantive changes. The redraft of § 2.2-3706 reorganized the section into separate subsections addressing definitions, discretionary releases, required releases, prohibited release, noncriminal records, and conflict resolution. The redraft also contained a second enactment clause stating that it was declaratory of existing law to make it clear that this was not a substantive change in the law. The Council voted 8-2 in favor of recommending the draft. However, after the vote, there was concern expressed by several members that introducing the draft might open up the entire topic to re-examination and unwanted mischief. Given that 2011 was an election year in the House of Delegates, it was suggested that introduction of the redraft of § 2.2-3706 be delayed until the 2012 Session of the General Assembly.

The Council continued to monitor Virginia court decisions relating to FOIA. In another U.S. District Court case in the Eastern District of Virginia, Ostergren v. McDonnell, the Court considered the prohibition on dissemination of social security numbers (SSNs) obtained from public records contained in the Personal Information Privacy Act (PIPA). (*9) Ms. Ostergren advocates for the removal of SSNs from public records, especially court records that are published online. She publishes the Virginia Watchdog website to further those efforts. Among other content on the website, Ms. Ostergren republishes public records that contain SSNs in order to emphasize her advocacy and illustrate the problem. In July 1, 2008, PIPA was amended to prohibit the republication of public records containing SSNs, including fines up to $2500 per violation, investigative demands, and injunctions. In its analysis the court reviewed prior Supreme Court decisions and observed that SSNs are generally entitled to privacy as personal identifiers that may be misused. However, the court found that based on the record, the General Assembly did not provide funding for the redaction by court clerks of SSNs from court records, and therefore protection of SSNs is not a state interest of the highest order. The court also found that this matter - the protection of SSNs - is a matter of public significance and that Ms. Ostergren's speech is political in nature and entitled to protection under the First Amendment. The court decided that PIPA is unconstitutional as applied to Ms. Ostergren's website as it presently exists, but further briefing would be required "on the propriety and scope of an injunction other than with respect to Ostergren's website as it exists." (*10) In August, a three judge panel of the U.S. Fourth Circuit Court of Appeals unanimously ruled that Ms. Ostergren could not be punished under PIPA where the public records containing SSNs were legally obtained. The case has been remanded to the U.S. District Court to fashion appropriate injunctive relief.

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 2010, Council staff conducted 53 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 addition to Virginia State Bar continuing legal education credit, the training programs 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.

For this reporting period, the Council, with a staff of two attorneys, responded to 1,690 inquiries. Of these inquiries, six resulted in formal, written opinions. The breakdown of requesters of written opinions is as follows: two by government officials, one by a media representative, and three by citizens. The remaining requests were for informal opinions, received via telephone and e-mail. Of these requests, 899 were made by government officials, 620 by citizens, and 165 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 2010 Session. The General Assembly passed a total of 12 bills amending FOIA during the 2010 Session. Two bills amending FOIA passed as recommendations of the Council: House Bill 434 (Griffith), which allows the redaction of financial account numbers and routing information, passed as a recommendation of the Council; and House Bill 433 (Griffith), which sets out the original date (January 1, 1975) when social security numbers were authorized to be collected or required by state and local agencies under federal law, and makes other changes to the Government Data Collection and Dissemination Practices Act (GDCDPA). A more detailed report of the bills discussed above and those FOIA and other public access bills passed during the 2010 Session appear on the Council's website and are attached as Appendix E to the Council's 2010 Annual Report.

In 2010, the Council said goodbye to Council members Ralph L. "Bill" Axselle and Courtney M. Malveaux. Mr. Axselle served on the Council since 2002 and his two four-year terms have expired. Mr. Malveaux was appointed by Governor McDonnell as the director of the Virginia Department of Labor and Industry. Messrs. Axselle and Malveaux were replaced by Ed Jones, Editor of the Free Lance Star, and Eric Gregory of the Office of the Attorney General, respectively. The Council also bid farewell to Delegate H. Morgan Griffith, who won his bid for the U.S. Congress in November 2010. Delegate Griffith was appointed to the Council in 2004, and served as vice chair from June 2004 until August 2008 and as chair from August 2008 until July 2010.
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(*1) HB449 (Ware, R.L.); Freedom of Information Act; injunctive relief for public bodies under certain circumstances. Provides that any public body may petition a court for injunctive relief to restrain a requester from harassment or other abuse of the rights or privileges granted under FOIA.

HB 641 (Armstrong); Freedom of Information Act; requests for records may be made by any citizen of United States. Provides that FOIA requests may be made by any citizen of the United States and not just citizens of the Commonwealth and extends the same privilege to representatives of newspapers and magazines. The bill provides that this privilege is limited to those states which give reciprocal rights to make FOIA requests to Virginia citizens. The bill also allows a public body to require prepayment before providing requested records when the amount for so producing is likely to exceed $100.

HB 976 (Anderson)/SB 147 (Puller); FOIA; party whom writ is served must be served a copy of petition prior to filing. Clarifies that before a FOIA petition is filed, the party against whom the writ is brought must receive a copy of the petition within a reasonable time prior to the petitioner filing the petition with the court. The bill contains a technical amendment and incorporates HB 689.

SB 711 (Edwards); FOIA; disclosure of criminal investigative records. Limits the exemption for criminal investigative or prosecution records to those investigations or prosecutions that are ongoing. As a result, criminal investigative and prosecution records would be open to the public after the ongoing criminal investigation or prosecution has become final or has been otherwise terminated, unless there is jeopardy to any other criminal investigation or prosecution.

(*2) SB 738 was enacted into law by the 2003 Session of the General Assembly (c.275 of the 2003 Acts of Assembly).
(*3) A more thorough review of other states' laws appears on the Council website.
(*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).
(*6) It was noted that the Delaware case, although it received one level of appellate review, was not appealed to the United States Supreme Court.
(*7) 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.
(*8) By letter, the State Board of Elections submitted comment on the citizenship issue. Specifically, concern was expressed on the effect of HB 641 on the administration of elections in Virginia. The volume of requests (both in-state and out-of-state) can be very time consuming and divert attention away from election preparations at critical times. This is especially the case because many local electoral boards are understaffed.
(*9) Code § 59.1-443.2.
(*10) In full, the Court concluded "that Virginia Code §59.1-443.2 is unconstitutional as applied to Ostergren's website as it presently exists. However, given the significant public interest issues presented by the spreading of SSNs on the Internet, the Court will require further briefing on the propriety and scope of an injunction other than with respect to Ostergren's website as it exists."