HD4 - Report of the Virginia Freedom of Information Advisory Council - December 2012

Executive Summary:
In its twelfth year, the Council continues 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 12 year history, the Council has provided more than 17,000 formal and informal advisory opinions to citizens of the Commonwealth, media representatives, and state and local government officials; and has conducted approximately 665 FOIA training programs. In addition, the Council is recognized as the forum for evaluating proposed FOIA and related public access legislation. The Council 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, 2011 through November 30, 2012 -- the Council examined FOIA legislation and other public access issues referred to it by the General Assembly. The three bills referred to the Council by the General Assembly are as follows:

1. HB 397 (Hope) Virginia Parole Board; exceptions to the Freedom of Information Act. Requires guidance documents of the Board to be available as public records under the Freedom of Information Act. The bill has a delayed effective date to give the Council an opportunity to review the legislation and report on its implementation.

2. HB 1105 (Greason) Freedom of Information Act; electronic communication meetings. Revises the rules for which meetings of state public bodies may be conducted by audio or video means. The bill provides that (i) at least one member of the public body must be physically assembled at the principal meeting location, (ii) the quorum of the public body is determined by members participating in person or by electronic means in the meeting, (iii) a member of the public shall pay for the documented marginal cost that a public body may incur in expanding public participation to the meeting, and (iv) the number of meetings a public body may conduct through electronic communications means is limited to 50 percent of its regular meetings in any calendar year. The bill contains technical amendments.

3. HB 1149 (Dudenhefer) Freedom of Information Act; electronic communication meetings by local and regional public bodies. Expands the authority for the conduct of electronic communication meetings to all public bodies. Currently, local public bodies are prohibited from conducting public meetings in this manner, except when the Governor declares a state of emergency. The bill contains technical amendments.

The Council created two subcommittees to study the referred bills. The Parole Board Subcommittee, consisting of Council members Robert Tavenner, James Schliessman, and Frosty Landon, studied HB 397 during the 2012 interim. The second subcommittee, the Electronic Meetings Subcommittee, consisting of Council members Craig Fifer, John Selph, and George Whitehurst, (*3) examined HB 1105 and HB 1149. The Council also continued its Criminal Investigative Records Subcommittee, consisting of Council members Craig Fifer, James Schliessmann, John Selph, and Sandra Treadway, (*4) originally created in 2010 and reconstituted in 2011, to address issues related to criminal and law-enforcement records.

The Council worked with Delegate Hope and the Virginia Parole Board in its examination of HB 397. Delegate Hope told the Council that he introduced HB 397 in order to allow for public inspection of guidance documents regarding the Parole Board's policies and procedures. He pointed out concerns about restrictions on civil liberties, the costs of incarceration, and that currently no policy or procedural documents are available from the Parole Board. (*5) Steve Northup, from the law firm of Troutman Sanders, elaborated that based on his experience in litigation, the Parole Board generally operates in secrecy, and that what published information is available is not helpful. He further noted concerns for prisoners who were convicted before the abolition of discretionary parole in Virginia, effective in 1995. He related that many such prisoners were given very lengthy sentences with the expectation that they would be released on parole once eligible, but many have not been so released. The result is that those convicted before 1995 often serve longer sentences than those convicted after 1995, for the same offenses. He also noted that the bill would not only address documents about granting discretionary parole, but would also make available guidance documents about the revocation of parole. Delegate Hope and Mr. Northup both indicated that the bill was not intended to reach individual case information, but only general policy guidelines and procedures. Carla Peterson also spoke to the bill, as Director of Virginia CURE, an advocacy organization for prisoners and their families. She indicated they supported the bill because they would like to know how the Parole Board makes its decisions to ensure the process is fair. Mr. Fifer stated that the general approach under FOIA was to make all records public, and to place the burden on government to show why a record should be exempt. With that in mind, he suggested a possible approach to this issue would be to make the Parole Board subject to FOIA just as any other public body would be, but to give it the exemptions it would need both for meetings and records, particularly those involving the discussion of individual case files and criminal history.

The Parole Board Subcommittee met once in 2012 to consider HB 397 (Hope). That meeting was attended by the Chair, William Muse, and Vice-Chair, Karen Brown, of the Parole Board, who expressed their opposition to the bill. Mr. Muse stated that the Parole Board is already required to publish on its website its policies, procedures, and actions regarding the parole of prisoners. (*6) The Subcommittee then recommended that the patron and supporters of the bill meet with representatives of the Parole Board, as it was unclear to the Subcommittee what was the purpose of the bill in light of current law requiring certain disclosures from the Parole Board. Delegate Hope and Mr. Muse met on August 6, 2012, and agreed that they could work together to craft future legislation. In light of that agreement, the Subcommittee reported to the Council that its work on the matter was done, unless the parties requested further assistance. That being the case, the Council made no recommendation on HB 397.

The Council examined the issues raised by HB 1149. Delegate Dudenhefer advised the Council that he introduced HB 1149 to allow local and regional bodies to conduct meetings by electronic means. He noted that technology has come a long way in recent years, and he had personal experience with world-wide electronic conferences. As an example, he described a recent dinner in Virginia where the guest speaker was in Afghanistan. He noted that at times the restrictions on electronic meetings prevent good people from running for office or other public service due to scheduling conflicts that would not allow them to attend meetings in person. He further indicated he was open to the idea of having a test case to see how the bill would work if implemented on a limited basis. Mark Flynn, speaking on behalf of the Virginia Municipal League (VML) and the Virginia Association of Counties (VACo), indicated support for the approach of looking at the ability to use technology to conduct meetings. Delegate Iaquinto asked if there were problems getting quorums assembled at the local level. Mr. Flynn indicated it was sometimes a problem, but not all the time. Delegate Dudenhefer stated that from his experience as a former Board of Supervisors member, Board meetings were usually not a problem, but there were problems with committee meetings and in just getting good people with demanding jobs to serve at all.

Reviewing HB 1105, the Council was advised that currently only state public bodies are permitted to conduct electronic meetings as a general rule, (*7) because state officials are often geographically separated whereas officials serving on local and regional bodies generally live in the same area. HB 1105 would eliminate the requirement to have a quorum physically assembled in one location, and would require the public to pay to participate in public meetings by electronic means. A policy statement adopted by the Council in 2008 by a vote of 6-5 generally expressed support for face-to-face meetings but recognized continuing improvements in communications technology. (*8) The Council established an Electronic Meetings Subcommittee each year from 2005 through 2008, which over those years recommended loosening the requirements for conducting electronic meetings.

The Electronic Meetings Subcommittee met five times in 2012. It decided not to recommend either HB 1105 or HB 1149 as written, but did consider several alternative drafts. At its last meeting the Subcommittee voted to recommend two drafts to the full Council: one draft would allow state level public bodies that are solely advisory in nature to conduct electronic meetings without a physical quorum present in a single location, if certain other conditions are met; the other draft would expand individual participation by electronic means to include "personal matters" in the same subdivision that currently allows such participation in the case of personal emergencies. The Subcommittee reported these recommendations to the Council on December 17, 2012. The Council voted to recommend the content of both drafts to the 2013 Session of the General Assembly, but to have staff consolidate the two drafts into one, as both are germane to the subject matter of electronic meetings.

The Council's Criminal Investigative Records Subcommittee (*9), created in 2010, was continued in 2011 to examine SB 1467 and to consider a separate proposal concerning access to criminal and other law-enforcement records from the Virginia Press Association (VPA). In 2011, the Council adopted the Subcommittee's recommendation not to take any further action on SB 1467, but to continue to study the issues raised because of the amount of interest in access to criminal investigative files and other law enforcement records. Council staff met with interested stakeholders (VPA, the Virginia Coalition for Open Government, the Virginia Association of Chiefs of Police, the Virginia State Police, the Virginia Sheriffs' Association, VML, VACo, as well as law enforcement representatives from the Culpeper County Sheriff's Office and Fairfax County Police Department) three times in 2011, using a draft prepared by VPA as a vehicle for discussion at these meetings. The workgroup did not reach agreement on a legislative proposal, but agreed that work on this topic should continue in 2012. While no bill was referred on this topic by the General Assembly in 2012, the Subcommittee did continue the work begun in 2010 and 2011. VPA prepared a position paper regarding issues of concern in the current law, which was posted on the Council website and shared with the other interested parties. The stakeholders shared the position paper with their constituents to get their reactions. The Subcommittee met three times in 2012 with participation from the stakeholders, and at its last meeting voted to recommend an amended draft that would reorganize the existing law into subsections addressing (A) required, discretionary, and prohibited releases; (B) noncriminal records; (C) 911 calls; and (D) conflict resolution. The only substantive changes intended were to add subsection (C) to address 911 calls explicitly, and to amend the existing exemption for noncriminal records to allow it to be used by all public bodies engaged in law-enforcement activities. Under current law, the noncriminal records exemption applies only to records of sheriffs and local police departments. Due to concerns about a case recently granted an appeal to the Virginia Supreme Court, (*10) the draft also clarifies that law enforcement personnel records are subject to the specific exemption for background investigations and other administrative investigations under § 2.2-3706, as well as the general personnel records exemption in § 2.2-3705.1, but such personnel records are not governed by the exemption for noncriminal records in § 2.2-3706. The Subcommittee reported its recommendation to the Council on December 17, 2012. The Council then voted to recommend the draft to the 2013 Session of the General Assembly.

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. (*11) 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. (*12) 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). As of this writing, briefs have been filed but the case has not yet been argued before the Supreme Court. 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 on appeal, McBurney v. Young.

On June 7, 2012 the Virginia Supreme Court decided the case of Hill v. Fairfax County School Board. (*13) Ms. Hill contended that the School Board had conducted an improper closed meeting by using electronic mail to discuss public business concerning the closure of a school in advance of a public meeting. The trial court ruled in favor of the School Board, and the Supreme Court affirmed that decision, finding that the School Board had not violated FOIA because the electronic mail in question was sent from member-to-member on a one-on-one basis, involving no more than two members at a time, and did not generate any simultaneous group discussions that would constitute a meeting subject to FOIA.

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. The three assignments of error in this case include 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. As of the time of this writing, it appears that briefs have been filed but the case has not yet been docketed for oral argument.

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 2012, Council staff conducted 78 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 1,408 inquiries. Of these inquiries, five resulted in formal, written opinions. The breakdown of requesters of written opinions is as follows: three by government officials, none by media representatives, and two by citizens. The remaining requests were for informal opinions, given via telephone and email. Of these requests, 846 were made by government officials, 433 by citizens, and 124 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 2012 Session. The General Assembly passed a total of 10 bills amending FOIA during the 2012 Session. Of the 10 bills, two bills create new records exemptions as follows:

• Creates an exemption for personal information in constituent correspondence, unless the correspondence relates to the transaction of public business. HB 141 (Cole) amending § 2.2-3705.7;

• Creates an exemption for records of a fire/EMS company or fire/EMS department, to the extent that they disclose the telephone numbers for cellular telephones, pagers, or comparable portable communication devices provided to its personnel for use in the performance of their official duties. SB 193 (Miller) amending § 2.2-3705.2.

Eight bills amend existing provisions of FOIA as follows:

• Establishes the Virginia All-Payer Claims Database. Among other changes, amends an existing exemption for certain records disclosed to the State Health Commission to exempt certain records of the Virginia All-Payer Claims Database as well. HB 343 (O'Bannon) and SB 135 (Puller) amending § 2.2-3705.6;

• Provides that a member of a public body shall be permitted to attend a closed meeting held by any of its committees or subcommittees, provided such member does not participate in any discussions held by the committee or subcommittee conducting the closed meeting. The bill requires that the minutes of the committee or subcommittee include the identity of such member who attended the closed meeting. HB 480 (Albo) amending § 2.2-3712;

• Changes the terminology used for mental health and developmental services, including technical changes within several existing provisions of FOIA. HB 552 (Garrett) and SB 387 (Martin) amending §§ 2.2-3705.3, 2.2-3705.5, and 2.2-3711;

• Reorganizes the executive branch of state government. The bill contains numerous technical amendments to FOIA and other laws to accomplish this reorganization. HB 1291 (Gilbert) and SB 678 (McDougle) amending §§ 2.2-3705.2, 2.2-3705.3, 2.2-3705.5, and 2.2-3711;

• Amends an existing exemption to include certain information furnished to the Attorney General under the Virginia Fraud Against Taxpayers Act. SB 451 (Vogel) amending § 2.2- 3705.5.

A more detailed report of the bills discussed above and those FOIA and other public access bills passed during the 2012 Session appears on the Council's website and is attached as Appendix D to this report.

In 2012, the Council welcomed Christopher Ashby to its ranks. Mr. Ashby, appointed by the Governor, will serve a four-year term. Senator Stuart was elected chair and Delegate Iaquinto continued to serve as vice chair. The Council also said goodbye to Council member Craig Fifer. Mr. Fifer, a citizen member and gubernatorial appointee to the Council, dutifully served on the Council from July 2004 until June 2012. During his tenure, Mr. Fifer chaired several Council subcommittees, including Fifth Response to FOIA Requests, Electronic Meetings, Public Records, and Criminal Investigative Records. Mr. Fifer's contributions to the Council and to the cause of meaningful public access have been greatly appreciated.
(*3) Having served two consecutive four-year terms, Mr. Fifer was term limited as of July 1, 2012. After he left the Council, the Electronic Meetings Subcommittee consisted of Council members Kathleen Dooley, Stephanie Hamlett, John Selph, and George Whitehurst.
(*4) After Mr. Fifer left the Council due to term limits, the Criminal Investigative Records Subcommittee consisted of Council members James Schliessmann, John Selph, and Sandra Treadway.
(*5) With certain limited exceptions, the Parole Board currently is not subject to FOIA, pursuant to subdivision A 1 of § 2.2-3703.
(*6) See Va. Code § 53.1-136.
(*7) There are certain limited exceptions where a local or regional public body, or individual members thereof, may participate in meetings by electronic means, as set forth in §§ 2.2-3708 and 2.2-3708.1.
(*8) The discussion, vote, and full text of the statement are set forth in the minutes for the June 9, 2008 meeting of the Council, available on the Council website.
(*9) Council members Craig Fifer, Sandy Treadway, John Selph, and James Schliessman served on the Subcommittee.
(*10) Harmon v. Ewing, infra.
(*11) 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.)
(*12) McBurney v. Cuccinelli, 780 F.Supp.2d 439 (E.D.Va. 2011).
(*13) 284 Va. 306, 727 S.E.2d 75.