HD17 - Report of the Virginia Freedom of Information Advisory Council - December 2015
In its fifteenth year, the Council continued to fulfill its role as a clearinghouse for public access issues for the Virginia General Assembly. The Council has kept abreast of trends, developments in judicial decisions, and emerging issues related to the Virginia Freedom of Information Act (FOIA) and access generally. In its 15-year history, the Council has provided more than 22,400 formal and informal advisory opinions to citizens of the Commonwealth, media representatives, and state and local government officials and has conducted over 900 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, 2014, through November 30, 2015—the Council examined FOIA legislation and other public access issues referred to it by the General Assembly. The seven bills referred to the Council by the General Assembly are:
• HB 1646 (Pogge) - FOIA; proceeding for enforcement. Provides that in an enforcement action, if the court finds the public body violated certain meeting notice requirements, the court may invalidate any action of the public body taken at such meeting.
• HB 1722 (Ramadan)/ SB 893 (Petersen) - FOIA; working papers and correspondence exemptions for university presidents. Eliminates the working paper and correspondence record exemption for the president or other chief executive officer of any public institution of higher education in Virginia.
• HB 1776 (Albo)/SB 1032 (McDougle) - Alcoholic beverage control. Eliminates the Alcoholic Beverage Control (ABC) Board and replaces it with the Virginia Alcoholic Beverage Control Authority, created by the bill. The bill has a delayed effective date of July 1, 2018, except that the provisions of the thirteenth and fourteenth enactments become effective July 1, 2015.
NOTE: The thirteenth enactment clause to this bill states that the Virginia Freedom of Information Advisory Council shall include in its study of the Virginia Freedom of Information Act in accordance with House Joint Resolution No. 96 of the Acts of Assembly of 2014 a review of the provisions of § 2.2-3705.7 of the Code of Virginia as amended by this act and make any recommendations it deems necessary and appropriate.
• HB 2223 (Morris) - FOIA; willful violations a misdemeanor; penalty. Provides that in addition to the civil enforcement provisions of FOIA, any officer, employee, or member of a public body who, without legal excuse or justification, deliberately, willfully, and knowingly violates certain FOIA provisions is guilty of a Class 1 misdemeanor.
• SB 1166 (Hanger) - Public service corporations; access to public records. Makes a public service corporation subject to the public records provisions of the Virginia Freedom of Information Act with respect to any project or activity for which it may exercise the power of eminent domain and has filed or prefiled for a certificate or other permitting document.
• SB 1402 (Cosgrove) - FOIA; open meeting exemption for gang-related activities. Authorizes a public body to convene a closed meeting for consultation with or briefings by staff members, legal counsel, or law-enforcement or emergency service officials concerning criminal street gang-related activities.
FOIA Council action on each of these:
• HB 1646 (Pogge) - FOIA; proceeding for enforcement. Referred to Meetings Subcommittee for further study (incorporated into HJR No. 96 study).
• HB 1722 (Ramadan)/ SB 893 (Petersen) - FOIA; working papers and correspondence exemptions for university presidents. Referred to Records Subcommittee for further study. Records Subcommittee did not recommend the subject of these bills, but did recommend other amendments to the working papers and correspondence exemption.
• HB 1776 (Albo)/SB 1032 (McDougle) - Alcoholic beverage control; referred to FOIA Council by enactment clause. Referred to Records Subcommittee for further study. The Subcommittee recommended striking the new exemption.
• HB 2223 (Morris) - FOIA; willful violations a misdemeanor; penalty. The Council voted to recommend against the bill at its May 20, 2015 meeting. The Council provided Delegate Morris another opportunity to speak to his proposal during the Legislative Preview at the Council's November 18, 2015 meeting.
• SB 1166 (Hanger) - Public service corporations; access to public records. Referred to Records Subcommittee for further study. The Subcommittee recommended no action on the bill.
• SB 1402 (Cosgrove) - FOIA; open meeting exemption for gang-related activities. Referred to Meetings Subcommittee for further study (incorporated into HJR No. 96 study).
Additionally, the Council completed its second year of study of FOIA pursuant to House Joint Resolution No. 96 (HJR 96, 2014, LeMunyon), which directs the Council to (i) study all exemptions contained in FOIA and determine the continued applicability or appropriateness of such exemptions, (ii) determine whether FOIA should be amended to eliminate any exemption from FOIA that the Council determines is no longer applicable or appropriate, (iii) examine the organizational structure of FOIA and make recommendations to improve the readability and clarity of FOIA, and (iv) report its findings and recommendations by December 1, 2016. At each of its meetings, the Council received progress reports from its two HJR 96 subcommittees and reviewed the draft legislation that has been recommended by each Subcommittee. The Records Subcommittee met four times in 2014 and six times in 2015. To date the Records Subcommittee has studied 76 records exemptions. An additional 27 exemptions for proprietary records and trade secrets were referred to the Proprietary Records Work Group which met four times in 2015. That Work Group will continue to meet in 2016. The Records Subcommittee also formed a DHRM Records Work Group which met one time to study an exemption particular to the Department of Human Resource Management. The Meetings Subcommittee met six times in 2015. The Meetings Subcommittee completed its review of the closed meeting exemptions in FOIA (approximately 45 exemptions in total) and began studying meetings procedure issues. The Council decided that rather than introduce individual legislative recommendations as separate bills while the study is ongoing, it will recommend for the 2017 Session an omnibus bill at the conclusion of the study. Summaries of the Records Subcommittee’s and Meetings Subcommittee’s work, including agendas, recommendations, and exemption worksheets, are available on the Council’s website.
The Council continued to monitor Virginia court decisions relating to FOIA. In the fall of 2015 the Supreme Court of Virginia issued an opinion in case of Virginia Department of Corrections v. Surovell(*1). This case concerned a request for various documents related to executions, including execution manuals. The Department denied the request for execution manuals pursuant to subdivision 6 of § 2.2-3705.2, a public safety exemption which allows a public body to withhold the following records:
Engineering and architectural drawings, operational, procedural, tactical planning or training manuals, or staff meeting minutes or other records, the disclosure of which would reveal surveillance techniques, personnel deployments, alarm or security systems or technologies, or operational and transportation plans or protocols, to the extent such disclosure would jeopardize the security of any governmental facility, building or structure or the safety of persons using such facility, building or structure.
The Supreme Court ruled in favor of VDOC that VDOC did not have to release the execution manuals. Surovell had argued that VDOC had used an incorrect standard for determining whether release of the records would "jeopardize the security of any governmental facility, building or structure or the safety of persons using such facility, building or structure." The Supreme Court rejected that argument, holding that "[t]o the extent that releasing documents would expose a governmental facility to danger, the standard is met. VDOC need not prove conclusively that, if it responded, some [facility’s security] would in fact be compromised or jeopardized." [Internal quotations omitted.] The Supreme Court also opined on the weight to be given agency expertise:
We ... hold that the circuit court must make a de novo determination of the propriety of withholding the documents at issue, but in doing so, the circuit court must accord “substantial weight” to VDOC’s determinations. (“[D]e novo review in the national security context can be summarized as follows: (1) The government has the burden of establishing an exemption. (2) The court must make a de novo determination. (3) In doing this, it must first ‘accord substantial weight to an agency’s affidavit concerning the details of the classified status of the disputed record.’”). Once satisfied that proper procedures have been followed and that the information logically falls within the exemption clause, courts need go no further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith.
[Internal citations omitted.] Finally, the Supreme Court also addressed whether an agency would be required to redact a record when only part of the record is exempt, or whether the entire record may be withheld. The Court stated that "[t]he question before us is whether an agency is required to redact an exempt document that may contain non-exempt material. We agree with the Commonwealth that an agency is not required to redact under these circumstances." The Supreme Court qualified that holding based on the language of the exemption itself and whether the exemption uses the word "portions," as follows:
The wording of the statute applies the exclusion to the entire drawing, manual, minutes or record and makes it disclosable only at the discretion of the custodian. Nothing in this section speaks to redaction except for a general reference to the option of disclosure at the discretion of the custodian. This language creates no requirement of partial disclosure or redaction.
* * *
Where the General Assembly intends to require redaction and production of portions of records, it has specifically so provided....Had the General Assembly intended to require redaction of documents that fall under the security exemption of subsection (6) of the statute, it would have included the phrase “those portions” or “portions thereof.”
Delegate Surovell spoke to the Council about the case as part of the Council's Legislative Preview on November 18, 2015. Delegates LeMunyon and Surovell both indicated they would likely introduce legislation during the 2016 Session of the General Assembly in response to the Supreme Court's decision.
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 2015, Council staff conducted 79 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. While FOIA training is the most critical mission of the Council, in 2015, the annual statewide FOIA Workshops conducted by Council staff were discontinued. The statewide workshops posed considerable administrative burdens in their planning and execution, especially in light of the small Council staff. The Council continues to provide FOIA training, however, but upon the request of any interested group, such as the staff of state and local agencies, members of local governing bodies, media organizations, citizen organizations, and any other group that wishes to learn more about FOIA. Under this new approach, Council staff travels to the location of the group requesting training and provides relevant training materials. The training is tailored to meet the needs of the particular group, ranges from 45 minutes to several hours, and presents a general overview of FOIA or focuses specifically on particular exemptions or portions of FOIA frequently used by that group or organization. Under the new training approach offered by the Council, organizations requesting training are strongly encouraged, but not required, to consolidate training by including other like organizations within a single or neighboring jurisdiction(s) wherever possible. All Council training programs are preapproved by the Virginia State Bar for continuing legal education credit for licensed attorneys. The training programs are also preapproved 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.
The Council develops and continually updates free educational materials to aid in the understanding and application of FOIA. This year, the Council added a Citizens' Guide to Making FOIA Requests, in addition to updating previous reference materials. The Council publishes these educational materials on its website.
For this reporting period, the Council, with a staff of two attorneys, responded to 1,424 inquiries. Of these inquiries, nine resulted in formal, written opinions. The breakdown of requesters of written opinions is as follows: three by a government official, three by media representatives, and three by citizens. The remaining requests were for informal opinions, given via telephone and email. Of these requests, 802 were made by government officials, 467 by citizens, and 146 by media. Starting in 2006, the Council has seen an increase in the number of informal opinion requests compared with requests for formal written opinions. For the past several years this trend has remained consistent. This continuing trend appears to stem from the Council’s reputation for fairness and reliability in its informal opinions and as a creditable source for FOIA guidance before disputes arise.
FOIA was again the subject of significant legislative activity in the 2015 Session. The General Assembly passed a total of 16 bills amending FOIA during the 2015 Session. At its last meeting of 2014, the FOIA Council voted favorably to recommend the subject matter of three bills that passed the General Assembly in 2015: HB 1633 and SB 968, identical bills that create an exemption for certain records of certain health care committees and entities to the extent that they reveal information that may be withheld from discovery as privileged communications, and HB 2104, which provides that the record and open meeting exemptions for VCU Medical Center shall also apply when the records are in the possession of VCU or the discussion of certain matters occurs at a meeting of the Virginia Commonwealth University Board of Visitors.
Four bills add two new records exemptions in FOIA as follows:
• Creates an exemption for certain records of certain health care committees and entities to the extent that they reveal information that may be withheld from discovery as privileged communications. HB 1633 and SB 968 amending § 2.2-3705.5;
• Eliminates the Alcoholic Beverage Control (ABC) Board and replaces it with the Virginia Alcoholic Beverage Control Authority, created by the bill. Adds an exemption for certain proprietary records, trade secrets, financial records, and cost estimates. The bill contains numerous technical amendments. The bill has a delayed effective date of July 1, 2018, except that the provisions of the thirteenth and fourteenth enactments become effective July 1, 2015. [NOTE: The act amends an existing records exemption in § 2.2-3705.3, adds a new records exemption in § 2.2-3705.7, and adds a new meetings exemption in § 2.2-3711, all subject to the delayed effective date of July 1, 2018. The thirteenth enactment, effective July 1, 2015, directs the FOIA Council to include a review of the amendments to § 2.2-3705.7 in the FOIA Council's three-year study directed by House Joint Resolution No. 96 (2014), effective July 1, 2015.] HB 1776 and SB 1032 amending §§ 2.2-3705.3, 2.2-3705.7, and 2.2-3711.
Four bills add two new meetings exemptions in FOIA as follows:
• Allows a closed meeting to be held for the discussion of certain exempt records related to Resource Management Plans. HB 1618 and SB 1126 amending § 2.2-3711;
• Eliminates the Alcoholic Beverage Control (ABC) Board and replaces it with the Virginia Alcoholic Beverage Control Authority, as summarized above. Allows a closed meeting to be held to discuss certain exempt records held by the Authority. HB 1776 and SB 1032 amending §§ 2.2-3705.3, 2.2-3705.7, and 2.2-3711.
Twelve bills amend existing provisions of FOIA as follows:
• Amends existing records and meetings exemptions to cover certain adult death investigations by adult fatality review teams. HB 1558 amending §§ 2.2-3705.5 and 2.2-3711;
• Amends the definition of public body to include private police departments, for purposes of access to public records. Enacted with an emergency clause, giving it an effective date of March 16, 2015. HB 1606 and SB 1217 amending § 2.2-3701;
• Abolishes the Capital Access Fund for Disadvantaged Businesses, and makes a corresponding amendment to an existing records exemption. HB 1757 and SB 854 amending § 2.2-3705.6;
• Eliminates the Alcoholic Beverage Control (ABC) Board and replaces it with the Virginia Alcoholic Beverage Control Authority, as summarized above. Makes a corresponding technical amendment to an existing records exemption for certain administrative investigations. HB 1776 and SB 1032 amending §§ 2.2-3705.3, 2.2-3705.7, and 2.2-3711;
• Amends an existing records exemption to provide that the identity of donors to the Veterans Services Foundation does not have to be disclosed under FOIA if the donor has requested anonymity in connection with or as a condition of making a pledge or donation. HB 1967 amending § 2.2-3705.7;
• Provides that the record and open meeting exemptions for VCU Medical Center shall also apply when the records are in the possession of VCU or the discussion of certain matters occurs at a meeting of the Virginia Commonwealth University Board of Visitors. HB 2104 amending §§ 2.2-3705.7 and 2.2-3711;
• Clarifies that the gathering or attendance of two or more members of a public body (i) at any place or function where no part of the purpose of such gathering or attendance is the discussion or transaction of any public business, and such gathering or attendance was not called or prearranged with any purpose of discussing or transacting any business of the public body, or (ii) at a public forum, candidate appearance, or debate, the purpose of which is to inform the electorate and not to transact public business or to hold discussions relating to the transaction of public business, even though the performance of the members individually or collectively in the conduct of public business may be a topic of discussion or debate at such public meeting, is not a meeting under FOIA. SB 969 amending §§ 2.2-3701 and 2.2-3707;
• Expands the open meeting exemption for the discussion of plans to protect public safety as it relates to terrorism and security of governmental facilities to include the discussion of specific cybersecurity threats or vulnerabilities, including the discussion of related records excluded from FOIA, where discussion in an open meeting would jeopardize the safety of any person or the security of any facility, building, structure, information technology system, or software program. Enacted with an emergency clause, giving it an effective date of March 16, 2015. SB 1109 amending § 2.2-3711;
• Expands the current record exemption for plans and information to prevent or respond to terrorism to include information not lawfully available to the public regarding specific cybersecurity threats or vulnerabilities or security plans and measures of an entity, facility, building structure, information technology system, or software program. Enacted with an emergency clause, giving it an effective date of March 16, 2015. SB 1129 amending § 2.2-3705.2.
A more detailed report of the bills discussed above and other public access bills passed during the 2015 Session appears on the Council’s website and is attached as Appendix D to the 2015 Annual Report of the FOIA Council.
Keeping abreast of the latest access trends, access to public records contained in databases owned and maintained by many governmental entities has become the subject of numerous inquiries to the Council. Several database examples were examined and Council discussions included how, under FOIA or other law, such databases were to be treated for public access purposes. The first example reviewed was for the Virginia Information Technologies Agency (VITA), which maintains IT architecture and equipment for executive branch agencies, and the Library of Virginia, which archives records from all over the Commonwealth for both state and local public bodies. Public access for both is addressed in subsection J of § 2.2-3704 in regard to transferring possession of records(*2). The Council also reviewed the status of records held by the Division of Legislative Automated Systems (DLAS), an IT agency for the legislative branch that maintains records of the General Assembly, the Clerks of the House and Senate, the Division of Legislative Services, and other legislative agencies. Subdivision 5 of § 30-34.14 provides that such records are not to be revealed by DLAS(*3). The next database example was the State Compensation Board and its Local Inmate Data System. Citizen requests for the database for a particular jail were denied due to the prohibition on the release of criminal history information and the FOIA exemption for "All records of persons imprisoned in penal institutions in the Commonwealth provided such records relate to the imprisonment." (§§ 19.2-389 and 2.2-3706(A)(2)(d).) However, individual records and statistical records are available online (vinelink.com and the State Compensation Board website, respectively). The Council next considered the database that exists at the Department of State Police for concealed handgun permits that are issued by the circuit court. Note that public access to records of persons having a concealed handgun permit has changed over time: these records were initially open, but subsequently the full State Police database was closed to public access, although individual circuit court records were open to the public. In 2015, however, all such records are closed except statistical and aggregate info.(*4)
Another database example concerned the Department of Criminal Justice Services (DCJS) and the required training of law-enforcement officers. Currently DCJS oversees in-service training for qualification and certification of continuing education of law-enforcement officers as well as persons licensed as private security services businesses. As a result, DCJC maintains a database of all in-service training, which database also contains the names, positions, employee ID number, and employment history with law-enforcement agencies of each law-enforcement officer and similar data on private security individuals. The Council was told that there are 40,000 such individuals in the DCJS database. For law-enforcement officers, this information would be also maintained by the employing law-enforcement agency. Generally, except for name and position information, which is required to be released under FOIA, the remainder of the information is exempt from mandatory disclosure as a personnel record. The Council was informed that DCJS has no knowledge if a particular law-enforcement officer is an undercover officer (which information is also exempt from FOIA). It is a large database and very difficult for DCJS to follow-up whether certain fields are exempt and as a result the review of the database would be costly to the requester. If the requester requested records from the individual agencies, the FOIA request would be easier and hence less costly to produce. A reporter with the Virginian-Pilot newspaper requested some of the records from the DCJS database including names, job positions, and dates of hire for law enforcement employees. It appears that the reporter and DCJS reached an agreement on the production of these records, but subsequently DCJS denied the request. The requester filed a FOIA petition against DCJS in the Norfolk Circuit Court, and the Court ordered DCJS to produce the database under the terms the parties had previously agreed upon.(*5)
Additionally, the Council discussed its recent advisory opinion (AO-03-15, issued on April 23, 2015) that addressed the question of whether the Office of the Executive Secretary of the Supreme Court of Virginia (OES) improperly withheld the electronic compilation of circuit court case status records in OES' case management system. The Council was informed that public access to the OES database varies; some circuit courts allow individual records to be accessed online, some allow their portion of the full database to be released, others do not participate in OES' case management system. OES has released those records in the past, but declined repeated requests for it recently, citing a change in policy last year. After lengthy analysis of pertinent provisions of law, AO-03-15 concluded that it appears that OES by statute operates and maintains a case management system, the operation and maintenance of the system is the transaction of OES' public business, and therefore OES' case management records are public records subject to FOIA. By operation of law, the respective clerks also remain custodians of those records, and they bear responsibility for maintaining the integrity of those records. To the extent that OES owns or possesses such data, it is also a custodian of such records and likewise responsible to respond to a request for it under FOIA. Subsequent to the issuance of AO-03-15, it appears that the Newport News Daily Press has brought a FOIA petition against OES seeking release of the database, but that litigation has not been resolved. The Council will continue to monitor the case as it progresses.
In 2015, the Council welcomed Marisa Porto, vice-president of content for the Daily Press in Newport News, who was appointed to a four-year term by the Speaker of the House of Delegates as the media representative to the Council, and Shawri King-Casey, the Compliance and Transparency Counsel for the Office of the Attorney General, as the designee of the Attorney General to the Council.
(*1) Virginia Department of Corrections v. Surovell, (Supreme Court of Virginia, Record No. 141780, decided Sept. 17, 2015)(available at http://www.courts.state.va.us/opinions/opnscvwp/1141780.pdf).
(*2) "In the event a public body has transferred possession of public records to any entity, including but not limited to any other public body, for storage, maintenance, or archiving, the public body initiating the transfer of such records shall remain the custodian of such records for purposes of responding to requests for public records made pursuant to this chapter and shall be responsible for retrieving and supplying such public records to the requester. In the event a public body has transferred public records for storage, maintenance, or archiving and such transferring public body is no longer in existence, any public body that is a successor to the transferring public body shall be deemed the custodian of such records. In the event no successor entity exists, the entity in possession of the public records shall be deemed the custodian of the records for purposes of compliance with this chapter, and shall retrieve and supply such records to the requester. Nothing in this subsection shall be construed to apply to records transferred to the Library of Virginia for permanent archiving pursuant to the duties imposed by the Virginia Public Records Act (§ 42.1-76 et seq.). In accordance with § 42.1-79, the Library of Virginia shall be the custodian of such permanently archived records and shall be responsible for responding to requests for such records made pursuant to this chapter."
(*3) "Every document or file maintained or stored on equipment of the Division shall be considered the property of the person for whom the document or file is maintained or stored. Neither the Director nor any employee of the Division shall reveal any of this property to any person outside of the Division, except with the consent of the owner of the property."
(*4) § 18.2-308.02 (D): " The clerk of court shall withhold from public disclosure the applicant's name and any other information contained in a permit application or any order issuing a concealed handgun permit, except that such information shall not be withheld from any law-enforcement officer acting in the performance of his official duties or from the applicant with respect to his own information. The prohibition on public disclosure of information under this subsection shall not apply to any reference to the issuance of a concealed handgun permit in any order book before July 1, 2008; however, any other concealed handgun records maintained by the clerk shall be withheld from public disclosure."
(*5) Harki v. Dept. of Criminal Justice Services (Circuit Court of the City of Norfolk, Civil Docket No. CL15-10637, letter opinion dated November 18, 2015); see also Jonathan Edwards, Virginian-Pilot wins lawsuit to get police officers' info, The Virginian-Pilot PilotOnline, November 18, 2015, available at http://www.pilotonline.com/news/government/virginia/virginian-pilot-wins-lawsuit-to-get-police-officers-info/article_5415888b-71ec-56c9-90af-77f4c0326ada.html (last accessed December 1, 2015).