HD8 - Report of the Virginia Freedom of Information Advisory Council – December 2018

Executive Summary:

In its nineteenth 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 FOIA and public access generally. In its 18-year history, the Council has provided more than 27,800 formal and informal advisory opinions to citizens of the Commonwealth, media representatives, and state and local government officials and has conducted over 1,050 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, 2017, through November 30, 2018—the Council examined FOIA legislation and other public access issues referred to it by the General Assembly. This year the General Assembly referred 13 bills to the Council for further study. Each of these bills referred was scheduled for review, and all of the patrons were invited to Council meetings to provide the background for their respective bills. The Council established three subcommittees to hear bills in their respective subject areas: nine bills were referred to the Records Subcommittee, two bills were referred to the Meetings Subcommittee, and two bills were referred to the Remedies Subcommittee. Six of the nine bills referred to the Records Subcommittee dealt with issues concerning the custody and transfer of records that stemmed from concern over access to certain court records.(*4) However, the Subcommittee and the Council took no action on these bills at the request of the bills' patrons. The patrons requested that no action be taken because other legislation was passed this year that addressed their concerns regarding access to court records through legislation outside of FOIA.(*5) Following the recommendations of the Records Subcommittee, the Council recommended amended versions of the other three bills referred to the subcommittee as follows:

• HB 904 (Robinson); the original bill would have established a general exemption for trade secrets, as recommended by the Council last year. Due to concerns over possible unintended consequences, especially regarding the chemical mixtures used in hydraulic fracturing, the amended version as recommended instead only clarifies the definition of "trade secrets" to mean the same as that term is used in the Uniform Trade Secrets Act (§ 58.1-336 et seq.).

• HB 1329 (Tran); the original bill would prohibit any state agency maintaining an information system that includes personal information from disseminating to federal government authorities information concerning the religious preferences and affiliations of data subjects for the purpose of compiling a list, registry, or database of individuals based on religious affiliation, national origin, or ethnicity. The amended version as recommended adds language to account for state and federal laws that specifically require the collection or dissemination of such information (for example, student financial aid applications).

• SB 730 (DeSteph); the original bill would amend the definition of "public records," exempt certain social media records from mandatory disclosure, and provide that the public body is a necessary party to any enforcement proceeding. The amended version as recommended would instead provide for the Office of the Attorney General to represent a member of the General Assembly if a FOIA petition was filed against the member.

Two bills were referred to the Meetings Subcommittee, House Bill 1101 (Robinson) and Senate Bill 336 (Peake), both of which would have required public comment periods at public meetings. Bills concerning this topic area had been referred to the Council previously in 2016 and 2017 but did not result in any recommendation.(*6) This year the Council decided to address the issue through guidance rather than through legislation. To that end, the Council has adopted and published the following policy statement:

As a matter of best practices, the FOIA Council encourages all public bodies to include public comment periods during public meetings. Additionally, the FOIA Council specifically recommends that all public institutions of higher education should afford an opportunity for public comment during any open meeting where a vote to recommend or change any fee or tuition amount occurs.

Two bills were also referred to the Remedies Subcommittee, and the subcommittee recommended amended versions of each bill to the Council. However, the Council only recommended one of the amended bills, and decided to take no action regarding the other:

• HB 213 (Mullin); the original bill would provide that formal advisory opinions be approved by the FOIA Council and provide protection from liability for civil penalties under certain circumstances. The Council recommended an amended version that would provide that any officer, employee, or member of a public body alleged to have willfully and knowingly violated FOIA who acted in good faith reliance upon an advisory opinion issued by the Council may introduce such advisory opinion as evidence that the alleged violation was not made willfully and knowingly.

• SB 630 (Surovell); the original bill would add civil penalties for improper destruction or alteration of public records and improper certification of a closed meeting. The amended version recommended by the subcommittee would have provided for a monetary penalty range rather than a fixed amount, and would have clarified that the penalties would not apply retroactively. After further discussion and debate, however, the Council voted to recommend no action on this bill.

A full list of all of the bills referred and the actions taken on each bill appears as Appendix E to the 2018 Annual Report of the FOIA Council.

The Council also recommended a draft to clarify that certain requirements of current law regarding participation in public meetings through electronic communication means do not apply to meetings held to address a state of emergency declared by the Governor, specifically the requirements that public bodies (i) adopt a written policy regarding participation by electronic communication, (ii) have a quorum of a public body physically assembled at a primary or central location, and (iii) make arrangements for the voice of any member participating from a remote location to be heard by all persons at the primary or central location. These requirements apply to certain types of electronic participation under former § 2.2-3708.1 that unintentionally became applicable to electronic meetings held to address states of emergency declared by the Governor when §§ 2.2-3708 and 2.2-3708.1 were consolidated through legislation effective July 1, 2018.(*7)

The Council continued to monitor Virginia court decisions relating to FOIA. In 2017, the Accomack County General District Court issued an opinion in Turner v. Office of the Executive Secretary. (*8) Dr. Turner, a citizen, sought access to certain records regarding annual budget allotments provided to circuit court judges. The general district court concluded that "judges are not public bodies, and they are not officers or employees of a public body" and therefore "individual judges are excluded from the requirements of FOIA." In a related case, the Circuit Court for the City of Richmond issued a final order dated October 15, 2018, which found that FOIA "does not apply to the judiciary, including the Executive Secretary."(*9) Staff also informed the Council that since the Council considered the issue of declaratory judgment last year, two more circuit cases had been decided, both of which held that declaratory judgement against a public body is unavailable under FOIA.(*10) Staff noted that a prior circuit court case did allow a declaratory judgment action to be brought, but the posture was different because in that case it was the public body that brought the action.(*11)

The Council continued its commitment to providing FOIA training. The Council views its training duty as its most important mission and welcomes opportunities to provide FOIA training programs. During 2018, Council staff conducted 48 live, in-person 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. In 2015, the annual statewide FOIA Workshops conducted by Council staff were discontinued in favor of providing training upon the request of any interested group. Under this approach, Council staff travels to the location of the group requesting training, provides relevant training materials, and presents training tailored to meet the needs of the particular group. All such 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. In addition, the Virginia Municipal Clerks Association, the Virginia School Board Association, and other organizations give credit for attendance at these FOIA presentations. In 2017, the Council also implemented a free online training program available through the Commonwealth of Virginia Learning Center administered by the Department of Human Resource Management ( https://covlc.virginia.gov/). This format allows FOIA officers to be trained at a time when it is convenient for them and to generate records of who has completed training, and provides for the issuance of a certificate of completion contemporaneously with successful course completion. Both the live, in-person presentations and the online training program satisfy the statutory requirement for FOIA officers to receive annual training. Additionally, pursuant to HB 2143 (LeMunyon, 2017), the Council has created forms for FOIA officers to report their contact information, and it has also created a searchable list of FOIA officers, both available on the Council's website ( http://foiacouncil.dls.virginia.gov/).

For this reporting period, the Council responded to 1,889 inquiries. Of these inquiries, nine resulted in formal, written opinions, all of which were requested by citizens. The remaining requests were for informal opinions, given via telephone and email. Of these requests, 1,168 were made by government officials, 596 by citizens, and 116 by media representatives. Starting in 2006, the Council has seen an increase in the number of informal opinion requests as compared with requests for formal written opinions. For more than a decade, 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. Last year there also was a noticeable increase in the number of inquiries concerning the requirements for FOIA officers, especially in regard to the availability of online training, the reporting requirements, and the list of FOIA officers, which has continued through 2018.

FOIA was again the subject of significant legislative activity in the 2018 Session. The General Assembly passed a total of nine bills amending FOIA during the 2017 Session. Five bills passed the General Assembly that were recommended by the FOIA Council: HB 905 that addresses what information shall be designated as trade secrets or proprietary information and therefore excluded from being open to public inspection under the Virginia Public Procurement Act (§ 2.2-4300 et seq.), HB 906 that clarifies the definition of electronic communication, HB 907 that consolidates existing provisions concerning public meetings conducted by electronic means, HB 908 that removes the requirement that the remote locations from which members of a public body participate in meetings through electronic communication means be open to the public and requires instead that members of the public be provided with an electronic communication means substantially equivalent to that provided to members of the public body, and HB 909 that clarifies that the discretionary exemptions contained in FOIA pertaining to law-enforcement and criminal records may be used by any public body. A more detailed report of the bills discussed above and other public access bills passed during the 2018 Session appears on the Council's website and is attached as Appendix D to this report.

In keeping abreast of the latest access trends, the Council has continued to encounter questions regarding the use of technology both in regard to public records and public meetings. On the records side, the Council has observed that databases are often shared among users and may be maintained by service providers that may be public bodies or independent contractors, rather than by the public body that created the records, which has raised the issue of who is the custodian of such databases. Additionally, the use of social media by public bodies and public officials has led to many questions regarding access and records retention. New developments in technology such as documents that may be edited in real time by multiple remote users have raised further questions on both the records and meetings sides of FOIA. At its final meeting this year, the Council directed staff to update and consolidate its existing guides regarding email to provide further guidance regarding social media and other emerging technologies.

This year the Council welcomed new legislative member Delegate Glenn R. Davis, Jr., and citizen member Lee Bujakowski, both appointed by the Speaker of the House. Mr. Bujakowski replaces Edward W. "Ed" Jones, who served two four-year terms in office and was ineligible for reappointment. The Council thanked Mr. Jones for his service.
(*4) House Bills 504 (Mullin), 664 (Kilgore), 957 (Yancey), 958 (Yancey), 959 (Yancey), and Senate Bill 876 (Mason).
(*5) House Bill 780 (Habeeb) and Senate Bill 564 (Obenshain).
(*6) House Bills 2223 (Kory, 2017), 698 (Kory, 2016), and 757 (Bell, R.B., 2016).
(*7) 2018 Acts of Assembly, c. 55.
(*8) Turner v. Office of the Attorney General (case no. GV17-0673) and Turner v. Office of the Executive Secretary (Case No. GV17-0637) (Accomack County General District Court, letter opinion dated August 3, 2017, addressing both cases).
(*9) Virginia Information Technologies Agency v. Turner and Office of the Executive Secretary (Case No. CL17-5280) (Circuit Court for the City of Richmond, Final Order dated October 15, 2017).
(*10)Transparent GMU v. George Mason University (Case No. CL 2017-07484) (Circuit Court of Fairfax County, decided November 29, 2017); Hurst v. City of Norfolk (Civil Docket No. CL17-11119) (Circuit Court of the City of Norfolk, decided November 20, 2017).
(*11)Town of Saltville v. Surber (Case No. CL11-100) (Circuit Court of Smyth County, decided July 11, 2011).