HD18 - Report of the Virginia Freedom of Information Advisory Council - December 2013


Executive Summary:
In its thirteenth year, the Council continued to fulfill its role to the Virginia General Assembly as a clearinghouse for public access issues. The Council has kept abreast of trends, developments in judicial decisions, and emerging issues related to FOIA and access generally. In its 13 year history, the Council has provided more than 18,500 formal and informal advisory opinions to citizens of the Commonwealth, media representatives, and state and local government officials; and has conducted over 720 FOIA training programs. The Council is recognized as the forum for evaluating proposed FOIA and related public access legislation, and routinely conducts comprehensive studies of FOIA and other Virginia laws to ensure Virginia's commitment to open government while balancing the need to protect the public's negotiating and litigation positions, privacy, and safety.

During this reporting period --December 1, 2012 through November 30, 2013-- the Council examined FOIA legislation and other public access issues referred to it by the General Assembly. The five bills referred to the Council by the General Assembly are as follows:

1. HB 2032 (May) - Freedom of Information Act; electronic meetings. Allows regional public bodies to conduct electronic meetings in the same manner as state public bodies. The bill also removes the requirement that a public body hold one meeting each year at which no member participates using electronic means. This bill is a recommendation of the Joint Commission on Technology and Science.

2. HB 2125 (Keam) - Virginia Freedom of Information Act; requests for records. Provides that FOIA requests may be made by any citizen of the United States and not just citizens of the Commonwealth. The bill also allows a public body to require prepayment before providing requested records when the cost for production of the records is likely to exceed $100.

3. HB 2321 (Surovell) - Virginia Freedom of Information Act; application to the State Corporation Commission. Makes the State Corporation Commission (SCC) subject to the Freedom of Information Act (FOIA) and designates venue for FOIA petitions against the SCC. The bill reverses a case holding that the Freedom of Information Act is not applicable to the SCC (Christian v. State Corporation Commission, November 2011).

4. SB 889 (Black) - Virginia Freedom of Information Act; electronic communication meetings; school boards. Allows local school boards to hold electronic communication meetings to the same extent allowed currently for state public bodies. The bill contains technical amendments.

5. SB 1371 (Stuart) - Virginia Freedom of Information Act; repetitive requests; remedies. Allows a public body to petition the appropriate court for additional time to respond to a request for records when the request is one of a series of requests by the same requester and a response by the public body within the time required by FOIA will prevent the public body from meeting its operational responsibilities. The bill also authorizes a court, in any action to enforce the provisions of FOIA, to decline to order production of the requested records if the evidence shows that the frequency or volume of the record requests made by the petitioner (i) constitutes an unreasonable burden on the resources of the public body, (ii) will prevent the public body from meeting its operational responsibilities, or (iii) has been made to evade the payment of any charges assessed in accordance with FOIA. The bill contains technical amendments.

The Council appointed two subcommittees to study the bills referred to it: the Electronic Meetings Subcommittee and the Rights and Remedies Subcommittee. The Electronic Meetings Subcommittee, which began its work in 2012, was reconstituted to study HB 2032 (May) and SB 889 (Black).

The Electronic Meetings Subcommittee consisted of Council members Kathleen Dooley, chair, Stephanie Hamlett, John Selph, and George Whitehurst. The Electronic Meetings Subcommittee met on May 20, 2013 and June 6, 2013, to study HB 2032 (May) and SB 889 (Black). (*1) After discussing the bills, the Subcommittee recommended taking no action on either bill. The Subcommittee felt that the legislation recommended by the Council and passed by the 2013 Session of the General Assembly would alleviate many of the problems these bills sought to address, as it will allow individual members of all public bodies to participate in meetings by electronic means when personal matters prevent their attendance in person. (*2) As the legislative change recommended by the Council had not yet gone into effect when the Subcommittee met, the Subcommittee recommended taking a wait-and-see approach to see how this change would work in practice before recommending any additional legislation. (*3) The Council voted unanimously to accept the Subcommittee's recommendation to take no action on HB 2032 and SB 889.

The Rights and Remedies Subcommittee, consisting of Council members Frosty Landon, chair, Stephanie Hamlett, Ed Jones, James Schliessmann, and Bob Tavenner, as well as industry representative David Ogburn, studied HB 2125 (Keam), HB 2321 (Surovell), and SB 1371 (Stuart). The Rights and Remedies Subcommittee met on May 20, 2013 and August 20, 2013, to study HB 2125 (Keam), HB 2321 (Surovell), and SB 1371 (Stuart). (*4) The Council concurred with the Subcommittee's recommendation that SB 1371 be tabled by a vote of nine-to-one (all present voted in favor, Senator Stuart voted against). Prior to the vote, the history of SB 1371 and previous bills that would have provided different forms of remedies for public bodies that felt overburdened or harassed by repetitive requests was the subject of in-depth discussion. Regarding HB 2125, the Council felt that because Virginia is one of the few states that limit access to its own citizens, and due to rapid changes in technology, the language granting FOIA rights only to citizens of the Commonwealth and certain media representatives may need to be re-written, but did not recommend a policy change at this time. Regarding HB 2321, the Council heard from Delegate Surovell in support of his bill, and from representatives of the State Corporation Commission (SCC) and regulated industries who opposed it. After giving consideration to the issues, the Subcommittee concluded its work without recommendation on HB 2321.

However, the Council indicated its support for the concept of making the SCC subject to FOIA as would be with any other state agency, but not the legislation as written. Therefore, although the work of the Subcommittee had concluded without recommendation, the Council continued to sponsor staff-facilitated meetings among the interested parties in an attempt to reach consensus. Parties in opposition to the bill continued to raise concerns about the need to protect frank discussions and voluntary submission of records from regulated industries and other entities such as Miss Utility. The opposing parties identified several types of records they felt should remain confidential, such as proprietary business data and trade secrets, information related to safety issues and critical infrastructure data (particularly from utilities companies), and any other records that might negatively affect business interests if made public by the SCC. The opposing parties also raised specific issues with the language used in the draft and whether the phrasing might provide too little or too much protection to specific types of records, and general concerns over possible unintended and unforeseen consequences. After hearing the concerns of the interested parties several revisions of the bill were drafted to address each concern that was raised. After the last discussion of the issues by the interested parties a final draft version of the bill was posted for comment before the last meeting of the Council for 2013. No comment was received. However, at the last meeting of the Council, several parties reiterated their objections and concerns over unintended consequences and the possibility of a chilling effect on businesses communicating with the SCC. The opposing parties expressed concern that FOIA by default makes all public records subject to disclosure unless a specific exemption allows the record to be withheld. Given this FOIA policy, the opposing parties indicated that they were unsure whether the exemptions as drafted would cover all of the records they felt should remain confidential. They instead indicated a preference for continuing to address SCC records outside of FOIA, which effectively renders all SCC records exempt from mandatory disclosure unless a specific statute requires their release. Senator Watkins appeared at the last meeting of the Council and informed the Council that he would introduce another bill addressing the same topics in the 2014 Session of the General Assembly, but that his bill would amend Title 12.1 rather than FOIA. A draft of that bill was not available for comparison or consideration. Senator Watkins reiterated some of the concerns express by the opposing parties and added his concern about introducing a third party, instead of the SCC, into the process of interpreting the disclosure laws applicable to the SCC. Although the Council supported the concept that the SCC be subject to FOIA, it then voted against recommending to the 2014 Session of the General Assembly the specific language of the final version of the draft offered by Delegate Surovell by vote of four in favor, five against, and two abstaining.

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. (*5) 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. On remand, the Eastern District court issued an opinion on the merits in January 21, 2011, that upheld the existing provisions of FOIA limiting access rights to Virginia citizens. (*6) The Eastern District determined that the limitation of rights to Virginia citizens did not burden a fundamental right and was closely related to a substantial state interest, therefore it did not violate the Privileges and Immunities clause of the United States Constitution. The court further determined that because Virginia's FOIA does not implicate principles of economic protectionism, and any effect on out-of-state business is incidental, it does not violate the dormant Commerce Clause. This decision was appealed to the Fourth Circuit, which heard arguments in the case on October 25, 2011 (McBurney v. Young, Case No. 11-1099). The Fourth Circuit issued its opinion on February 1, 2012, affirming the judgment of the Eastern District. The case was appealed to the Supreme Court of the United States, which granted certiorari on October 5, 2012 (Case No. 12-17). On April 29, 2013, the Supreme Court issued its opinion affirming the judgment below that Virginia's FOIA does not violate the Privileges and Immunities Clause or the dormant Commerce Clause of the United States Constitution (*7) and thus was constitutional as written.

On September 7, 2012 the Virginia Supreme Court granted an appeal in the case of Harmon v. Ewing (Record No. 121118), which was appealed from a decision of the Circuit Court for the City of Williamsburg & James City County. It does not appear that the Circuit Court decision has been reported. On appeal to the Supreme Court, the three assignments of error in this case included issues over the use of the personnel exemption by law enforcement agencies; whether a request for information, as opposed to a request for an existing public record, falls within the ambit of FOIA; and the granting of attorney's fees by the Circuit Court. The Supreme Court issued its decision on February 8, 2013, affirming in part, reversing in part, and remanding the case. The Court held that the personnel exemption applicable to public bodies generally (*8) also applies to law-enforcement agencies, reversing the decision of the court below on this point, which held that only the exemption for noncriminal incident records held by law-enforcement agencies (*9) applied to such personnel records. The request at issue also asked for information on individuals arrested by a named officer. The Court affirmed the judgment below that such information must be released as FOIA requires the release of information "relative to the identity of any individual, other than a juvenile, who is arrested and charged, and the status of the charge or arrest" and nothing in FOIA prevented making the request specific to arrests by a particular officer. Notably, in considering the release of such "information," the Court stated that the agency "may furnish copies of arrest records or produce the information via another appropriate format." However, the Court distinguished records in cases where the officer named in the request was involved, but was not designated as the arresting officer, stating that those records could be withheld as criminal investigative files. Finally, the Court remanded the issue of attorneys' fees to the court below. Note that the 2013 Session of the General Assembly also addressed the issue of personnel records of law-enforcement agencies in passing Senate Bill 1264 (Stuart), which was a recommendation of the Council. ) (*10)

The Council continued its commitment to providing FOIA training. The Council views its training duty as its most important mission and welcomes every opportunity to provide FOIA training programs. During 2013, Council staff conducted 57 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. Also all Council-sponsored training programs, whether the statewide workshops or specialized programs, are pre-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, the Virginia Municipal Clerks Association, and the Virginia School Board Association for academy points.

For this reporting period, the Council, with a staff of two attorneys, responded to 1,507 inquiries. Of these inquiries, ten resulted in formal, written opinions. The breakdown of requesters of written opinions is as follows: two by government officials, three by media representatives, and five by citizens. The remaining requests were for informal opinions, given via telephone and e-mail. Of these requests, 872 were made by government officials, 452 by citizens, and 173 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 2013 Session. The General Assembly passed a total of 16 bills amending the Virginia Freedom of Information Act (FOIA) during the 2013 Session. House Bill 2026 (Dudenhefer) and Senate Bills 1263 (Stuart) and 1264 (Stuart) all passed the General Assembly as recommendations of the Council. HB 2026 and SB 1263 concerned electronic meetings and SB 1264 concerned access to law-enforcement records.

Four of the 16 bills created new records exemptions as follows:

• Created an exemption for certain records of the Department of Aviation. HB 1855 (Knight) amending §§ 2.2-3705.6 and 2.2-3705.7;

• Created an exemption for certain records of disaster recovery and evacuation plans of hospitals and nursing homes. HB 2280 (Ward) amending § 2.2-3705.2;

• Created an exemption for certain records containing trade secrets provided to the Department of Environmental Quality. SB 1212 (Stuart) amending § 2.2-3705.6;

• Created an exemption for certain records of the Commonwealth's Attorneys' Services Council. SB 1334 (Norment) amending § 2.2-3705.7.

Twelve of the 16 bills amended existing provisions of FOIA as follows:

• Amended an existing exemption for certain records of minors participating in park and recreation programs. HB 1524 (Villanueva) amending § 2.2-3705.7;

• Defined "members of the General Assembly" to include legislative aides in the working paper and correspondence exemption. HB 1639 (Greason) amending § 2.2-3705.7;

• Made various technical and other statutory changes necessary to implement the privatization of the Virginia Office for Protection and Advocacy. HB 1844 (Orrock) amending §§ 2.2-3705.3 and 2.2-3711;

• Made various changes relating to the Fraud and Abuse Whistle Blower Reward Fund, including a technical amendment to an existing records exemption. HB 1845 (Loupassi) and SB 1178 (Ruff) amending § 2.2-3705.3;

• Amended an existing provision to allow a member of a public body to participate in a meeting by electronic communication means due to personal matters under certain circumstances. HB 2026 (Dudenhefer) amending § 2.2-3708.1;

• Amended an existing closed meeting exemption to allow the board of trustees of the Jamestown-Yorktown Foundation to convene a closed meeting when the topic is the discussion or consideration of matters relating to specific gifts, bequests, and grants. HB 2043 (Robinson) amending § 2.2-3711;

• Made various amendments relating to the State Inspector General, including a technical amendment to an existing records exemption. HB 2114 (Landes) and SB 1176 (Ruff) amending § 2.2-3705.3;

• Amended various provisions relating to the conduct of electronic meetings. SB 1263 (Stuart) amending §§ 2.2-3708 and 2.2-3708.1; also amends § 30-179, relating to the powers and duties of the FOIA Council;

• Amended various provisions relating to criminal and other records held by law-enforcement agencies and makes corresponding technical amendments. SB 1264 (Stuart) amending §§ 2.2-3706, 2.2-3711, and 15.2-1713.1;

• Created the Department of Small Business and Supplier Diversity by consolidating the powers and duties of the Department of Business Assistance and the Department of Minority Business Enterprise; makes a corresponding technical amendment to an existing records exemption. The bill has a delayed effective date of January 1, 2014. SB 1350 (McWaters) amending § 2.2-3705.6.

A more detailed report of the bills discussed above and those FOIA and other public access bills passed during the 2013 Session appear on the Council's website and are attached as Appendix D to this report.

In 2013, the Council welcomed Delegate LeMunyon to the Council. Delegate LeMunyon represents western Fairfax and Loudoun Counties and serves on the FOIA Subcommittee of the House General Laws Committee. Delegate LeMunyon was unanimously elected Vice Chair of the Council.

On March 16, 2013, Maria J.K. Everett, Executive Director of the Council, was invited to attend the Commemoration of the 262nd anniversary of the birth of President James Madison at James Madison's Montpelier and participated in the annual wreath laying ceremony there. The wreath, placed in the Madison Family Cemetery at Montpelier, was presented by Ms. Everett on behalf of the Council in recognition of James Madison's 262nd birthday and the celebration of Madison's birthday (March 16) as FOIA day in Virginia in accordance with Senate Joint Resolution 170 (2006) and Senate Joint Resolution 176 (1991).

Remembering Delegate Clifton A. "Chip" Woodrum
The Council made of special point of remembering former Delegate Clifton A. "Chip" Woodrum who passed away February 19, 2013. Delegate Woodrum served in the House of Delegates from 1980 through 2003, headed the General Assembly study of FOIA from 1998-2000, was chief patron of the House bill that created the Council, and was the first Chair of the Council. Delegate Woodrum is remembered as an honest and caring state legislator and for his wisdom, integrity, and wit. For Sunshine Week, Ms. Everett wrote an article remembering Delegate Woodrum and his role as an advocate for open government and the creation of the Council, which appeared in the Roanoke Times on March 10, 2013. A copy of the article is attached to the Council's 2013 annual report as Appendix G.
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(*1) HB 2032 (May) - Freedom of Information Act; electronic meetings. Allows regional public bodies to conduct electronic meetings in the same manner as state public bodies. The bill also removes the requirement that a public body hold one meeting each year at which no member participates using electronic means. This bill is a recommendation of the Joint Commission on Technology and Science.
SB 889 (Black) - Virginia Freedom of Information Act; electronic communication meetings; school boards. Allows local school boards to hold electronic communication meetings to the same extent allowed currently for state public bodies. The bill contains technical amendments.
(*2) SB 1263 (Stuart) and HB 2026 (Dudenhefer).
(*3) The relevant legislative change allowing members of public bodies to participate by electronic means when personal matters prevent their attendance in person went into effect July 1, 2013.
(*4) HB 2125 (Keam) - Virginia Freedom of Information Act; requests for records. Provides that FOIA requests may be made by any citizen of the United States and not just citizens of the Commonwealth. The bill also allows a public body to require prepayment before providing requested records when the cost for production of the records is likely to exceed $100.
HB 2321 (Surovell) - Virginia Freedom of Information Act; application to the State Corporation Commission. Makes the State Corporation Commission (SCC) subject to the Freedom of Information Act (FOIA) and designates venue for FOIA petitions against the SCC. The bill reverses a case holding that the Freedom of Information Act is not applicable to the SCC (Christian v. State Corporation Commission, November 2011).
SB 1371 (Stuart) - Virginia Freedom of Information Act; repetitive requests; remedies. Allows a public body to petition the appropriate court for additional time to respond to a request for records when the request is one of a series of requests by the same requester and a response by the public body within the time required by FOIA will prevent the public body from meeting its operational responsibilities. The bill also authorizes a court, in any action to enforce the provisions of FOIA, to decline to order production of the requested records if the evidence shows that the frequency or volume of the record requests made by the petitioner (i) constitutes an unreasonable burden on the resources of the public body, (ii) will prevent the public body from meeting its operational responsibilities, or (iii) has been made to evade the payment of any charges assessed in accordance with FOIA. The bill contains technical amendments.
(*5) McBurney v. Mims, (Mem. opinion)(2009 U.S. Dist. LEXIS 36971)(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.)
(*6) McBurney v. Cuccinelli, 780 F.Supp.2d 439 (E.D.Va. 2011).
(*7) Please note that the style of the case has changed several times as the named defendant has changed; in chronological order, this case has been styled McBurney v. McDonnell, McBurney v. Mims, McBurney v. Cuccinelli, and most recently, McBurney v. Young.
(*8) Subdivision 1 of § 2.2-3705.1.
(*9) Former subsection G of § 2.2-3706, now codified as subsection B of § 2.2-3706.
(*10) 2013 Acts of Assembly, c. 695 (amending Va. Code § 2.2-3706, which now provides in relevant part of subsection B: "Access to personnel records of persons employed by a law-enforcement agency shall be governed by the provisions of subdivision A 2 i of this section and subdivision 1 of § 2.2-3705.1, as applicable.")