HD4 - Report of the Virginia Freedom of Information Advisory Council – December 2019

Executive Summary:

In its twentieth 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 20-year history, the Council has provided more than 29,600 formal and informal advisory opinions to citizens of the Commonwealth, media representatives, and state and local government officials and has conducted over 1,100 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, 2018, through November 30, 2019 — the Council examined FOIA legislation and other public access issues referred to it by the General Assembly. In 2019, the General Assembly referred three bills to the Council for further study.(*4) 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 in 2019, one to hear each bill:

• HB 2201 (Tyler) State Forester; confidentiality of certain records. Excludes from the mandatory disclosure provisions of the Virginia Freedom of Information Act certain records of the Department of Forestry (the Department). The records include trade secrets and financial information, reports of criminal violations made to the Department by persons outside the Department, and records of an active administrative investigation.

• HB 2386 (Bulova) Public institutions of higher education; information relating to pledges and donations. Requires public institutions of higher education, when accepting a donation, gift, or similar financial support that is conditioned upon the acceptance of certain terms and conditions by the public institution of higher education, to provide the donor with a written document acknowledging the public institution of higher education's acceptance of such terms and conditions. The bill requires the public institution of higher education to retain a copy of such document and provides that such document shall be subject to the provisions of the Virginia Freedom of Information Act (FOIA). The bill provides that no discretionary exclusion in FOIA shall apply to protect information relating to the amount, date, purpose, and terms of a pledge or donation made to a public institution of higher education. The bill provides that the identity of the donor shall be protected only if (a) the donor has requested anonymity in connection with or as a condition of making a pledge or donation and (b) the pledge or donation does not impose terms or conditions related to academic decision-making.

• HJ 628 (Heretick) Study; Virginia Freedom of Information Advisory Council; threat of phishing attacks; report. Directs the Virginia Freedom of Information Advisory Council (FOIA Council) to study the threat of phishing attacks on citizens and public employees whose contact and private information is legally obtained as a result of a Freedom of Information Act (FOIA) request. The study further directs the FOIA Council to examine the current FOIA provisions and make recommendations on ways to address the threat of phishing attacks on citizens and public employees of the Commonwealth.

The Forestry Records Subcommittee was established to study HB 2201. The Subcommittee met once to study the bill, but upon further consultation with the patron, the Office of the Attorney General and the Department of Forestry, the interested parties decided not to move forward with the study of HB 2201, as they determined that existing exemptions in FOIA would cover the types of records they sought to protect.

The Donor Records Subcommittee was established to study HB 2386. After meeting once, the Subcommittee recommended the amendments that the bill would make to the existing FOIA exemption for donor records, but the Subcommittee took no position on the portion of the bill that amends Title 23.1, as it felt that provision fell outside the purview of FOIA and the Council. The Council accepted the Subcommittee's recommendation at the Council's meeting on July 17, 2019, by vote of 7-0-1.(*5)

The Phishing Study Subcommittee was established to study HJ 628 and related issues concerning phishing and cyberattacks referred to the Council by letter from M. Kirkland "Kirk" Cox, Speaker of the House. The Subcommittee met three times and heard testimony on phishing, spoofing, and other forms of cyberattacks from Delegate Stephen E. "Steve" Heretick, patron of HJ 628, and representatives from the City of Portsmouth, the Virginia Information Technologies Agency (VITA), the Virginia State Police, the Virginia Municipal League (VML), the Virginia Coalition for Open Government (VCOG), and the Virginia Press Association (VPA). The Subcommittee considered what is being done to prevent and respond to such attacks at the state and local levels currently, heard suggestions concerning possible changes to FOIA, and heard responses to those proposals. Following the Subcommittee's recommendation, the Council reported to the Speaker that due to the complexity, breadth, and importance of the issues that had been raised, it planned to continue the study next year. The Council also referred to the Subcommittee an issue initially raised by VCOG concerning tolling time when a requester asks for a cost estimate in advance. After hearing the Subcommittee's recommendation, the Council recommended to the 2020 Session of the General Assembly draft legislation that would provide that if a requester asks for a cost estimate in advance, the time to respond is tolled for the amount of time that elapses between notice of the cost estimate and the response from the requester, and that if the public body receives no response from the requester within 30 days of sending the cost estimate, the request shall be deemed to be withdrawn. The bill clarifies that if a cost estimate exceeds $200 and the public body requires an advance deposit, the public body may require the requester to pay the advance deposit before the public body is required to process the request.

The Council continued to monitor Virginia court decisions relating to FOIA. In 2019, the Virginia Supreme Court accepted the case of Transparent GMU v. George Mason University, which concerns whether a university foundation should be subject to FOIA, but the Court did not issue its decision on this case until after the Council concluded its work for the year.(*6)

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 2019, Council staff conducted 56 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, to generate records of who has completed training, and for 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/). In 2018, the Council began offering free training presentations on "Access to Public Records" in Richmond to anyone who wished to attend. In 2019, the Council continued these free presentations and expanded them to include the "Access to Public Meetings" and "FOIA and Law Enforcement Records" presentations, as well, holding a total of 15 such free presentations in Richmond.

For this reporting period, the Council responded to 1821 inquiries. Of these inquiries, nine resulted in formal, written opinions, four of which were requested by citizens, three by media representatives, and two by government representatives. The remaining requests were for informal opinions, given via telephone and email. Of these requests, 1112 were made by government officials, 604 by citizens, and 96 by media representatives. In March 2019, staff switched from using paper records to an electronic spreadsheet to track informal requests. Starting in 2006, the Council has seen an increase in the number of informal opinion requests 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. In 2018, 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 continued through 2019. In addition, there have been many inquiries about training for local elected officials, which will be required beginning July 1, 2020, pursuant to new § 2.2-3704.3 (see Appendix D below for details). The Council will develop a new online training program to facilitate compliance with this new requirement and enable local elected officials to take the course at their convenience.

FOIA was again the subject of significant legislative activity in the 2019 session. The General Assembly passed a total of 19 bills amending FOIA during the 2019 Session. Six bills passed the General Assembly that were recommended by the FOIA Council: HB 1772, which allows any officer, employee, or member of a public body to introduce an advisory opinion issued by the Council as evidence against allegations of a willful and knowing violation of FOIA if the person acted in good faith reliance on such advisory opinion; HB 2494, which prohibits any state agency 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 their religious preferences or affiliations, unless specifically required by state or federal law; SB 1101, which allows the Office of the Attorney General to represent a member of the General Assembly in any civil matter alleging that such member in his official capacity violated FOIA; SB 1180, which defines the term "trade secret," for the purposes of FOIA, as meaning the same as that term is defined in the Uniform Trade Secrets Act; SB 1182, which clarifies 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; and SB 1184, which provides that FOIA shall not apply to sexual assault response teams, with the exception of records relating to protocols and policies of the sexual assault response team and guidelines for the community's response established by the sexual assault response team, which shall be public records and subject to the provisions of FOIA. A more detailed report of the bills discussed above and other public access bills passed during the 2019 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. In particular, 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. In 2019, the Council published a new guide to FOIA and Social Media to address many of these concerns, which is available on the "Reference Materials" page of the Council's website.

In 2019, the Council welcomed new members Bruce Potter, who replaced Marisa Porto as a citizen member/media representative appointed by the Speaker of the House, Sterling E. Rives, III, who replaced Kathleen Dooley as a citizen member/local government representative appointed by the Senate Committee on Rules, and Matthew A. Conrad, who replaced Stephanie Hamlett as a citizen member/state employee appointed by the Governor. The Council thanks Ms. Porto, Ms. Dooley, and Ms. Hamlett for their service.
(*4) House Bills 2201 (Tyler) and 2386 (Bulova), and House Joint Resolution 628 (Heretick).
(*5) Ms. Shawri King-Casey abstained as the Office of the Attorney General was involved in litigation before the Supreme Court of Virginia (Transparent GMU v. George Mason University), also relating to access to donor records.
(*6) The Council held its last meeting on December 4, 2019; the Court issued its decision in the Transparent GMU case on December 12, 2019. Note that the Court held that university foundations are not "public bodies" subject to FOIA.