HD6 - Report of the Virginia Freedom of Information Advisory Council – December 2020

Executive Summary:

In its twenty-first 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 21-year history, the Council has provided more than 31,600 formal and informal advisory opinions to citizens of the Commonwealth, media representatives, and state and local government officials and has conducted over 1,135 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, 2019, through November 30, 2020—the Council examined FOIA legislation and other public access issues referred to it by the General Assembly. In 2020, the General Assembly referred two bills to the Council for further study and the Council continued a study from the 2019 Session.(*4) Each of the 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 two new subcommittees in 2020 and continued one from 2019, such that each subcommittee would hear one bill or resolution being studied by the Council:

• HB 321 (Levine, 2020) Virginia Freedom of Information Act; electronic meetings; serious medical condition of immediate family member. Allows a public body to conduct a meeting through electronic communication means if, on or before the day of a meeting, a member of the public body holding the meeting notifies the chair of the public body that he is unable to attend due to a serious medical condition of an immediate family member that prevents the member's physical attendance. The bill also limits such participation in an electronic meeting due to a personal matter to either two meetings per calendar year or 10 percent of the meetings held that calendar year, rounded up to the nearest whole number, whichever is greater.

• HB 5090 (Hurst, 2020 Special Session I) Virginia Freedom of Information Act; law-enforcement criminal incident information; criminal investigative files. Adds criminal investigative files, defined in the bill, to the types of law-enforcement and criminal records required to be released in accordance with the provisions of the Virginia Freedom of Information Act. Under current law, the release of criminal investigative files is discretionary. The bill also allows a law-enforcement agency or attorney for the Commonwealth to petition a court of record for permission not to release criminal incident information that would otherwise be subject to release, if the release of such information is likely to jeopardize an ongoing investigation or cause certain other harms.

• HJ 628 (Heretick, 2019) 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 Electronic Meetings Subcommittee was established to study HB 321. The Subcommittee met twice to study the bill and recommended to the Council an amended version that expands the existing provisions concerning electronic participation due to a medical condition to include caring for a sick family member and to increase the limitation on such participation due to personal matters to twice per year or 25 percent of the meetings held that calendar year, whichever is greater.

Due to the COVID-19 pandemic, the Electronic Meetings Subcommittee also studied the conduct of electronic meetings during states of emergency. The existing provision within FOIA for conducting electronic meetings during a state of emergency declared by the Governor limited the purpose of any such meeting to addressing the emergency itself.(*5) In the past, this provision has been sufficient because the types of emergencies at issue were generally weather-related emergencies of short duration. However, because of the duration and nature of the COVID-19 pandemic, public bodies needed to meet to address other business while still remaining physically separate to help prevent the spread of COVID-19. For that reason, language was added to the State Budget that allowed a broader scope of topics to be discussed at electronic meetings held during a state of emergency.(*6) A coalition of interested parties suggested to the Subcommittee a separate draft to address electronic meetings during states of emergency that expands the scope of the existing FOIA provision for such meetings in order to account for emergencies of greater duration such as the COVID-19 pandemic. The Subcommittee recommended an amended version of this draft to the Council. After considering both recommended drafts, the Council recommended amended versions of each to the 2021 Session of the General Assembly.

The Criminal Incident Information Subcommittee was established to study HB 5090. The Subcommittee met twice to study the bill and recommended an amended version of the bill to the Council, which the Council then recommended to the 2021 Session of the General Assembly. Currently, criminal investigative files may be withheld in the discretion of the custodian without any specific point at which release is required. The bill as recommended still allows criminal investigative files to be withheld in ongoing cases, but otherwise requires that they be released with certain limited exceptions.

The Phishing Study Subcommittee was established in 2019 to study House Joint Resolution 628 and related issues concerning phishing and cyberattacks as referred to the Council by letter from M. Kirkland "Kirk" Cox, Speaker of the House. The Subcommittee met three times in 2019 and once in 2020. In addition to phishing and cyber security issues, in 2019 the Subcommittee recommended to the Council a draft concerning tolling time when a requester asks for a cost estimate in advance, which the Council recommended to the 2020 Session of the General Assembly. The General Assembly passed an amended version of this legislation in 2020.(*7)

The Phishing Study Subcommittee met once in 2020 to continue the study of phishing and cyberattacks, and also considered a proposal to amend and expand an existing exemption designed to protect personal contact information when a person signs up to receive email from a public body. Regarding phishing attacks and related issues, the Subcommittee concluded that such issues are best addressed through training and cybersecurity measures, rather than through FOIA.

Regarding the proposals to amend the current exemption for personal contact information provided to a public body in order to receive email from the public body,(*8) the Phishing Study Subcommittee presented two drafts without recommendation to the full Council for its consideration. The first draft exempts personal contact information provided to a public body or any of its members or employees during general correspondence; the full Council did not recommend this proposal. The second draft provides that personal contact information provided to a public body or any of its members for the purpose of receiving electronic communications is excluded from the mandatory disclosure provisions of FOIA unless the recipient of such electronic communications indicates his approval for the public body to disclose such information; the full Council recommended this draft to the 2021 Session of the General Assembly.

The Council continued to monitor Virginia court decisions relating to FOIA. In 2020, the Virginia Supreme Court decided the case of Cole v. Smyth County Board of Supervisors, which concerns the provisions for conducting closed meetings. The Supreme Court found that the Board in that case had violated FOIA in two ways: (i) by failing to identify in a motion to convene the closed meeting the subject matter of that closed meeting as required by subsection A of § 2.2-3712 and (ii) by straying beyond the topics allowed to be discussed under the closed meeting exemption for discussion of actual or probable litigation. In a different case, Gent v. Adams (Case No. GV20-1202, Final Order Entered Oct. 8, 2020), the General District Court for Wise County found that a locality's website must be a ".gov" website obtained through the United States GSA to be an "official government website" for meeting notice purposes. Because various localities use different types of domains (.gov, .com, .net, etc.) for their websites, the Council determined it would take up this issue for study in 2021.

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 2020, Council staff conducted 37 FOIA live training programs 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 of which are 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 the general public. 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 that year.

In 2020, numerous training presentations that were scheduled to be conducted in person were canceled due to the COVID-19 pandemic. As a result, the vast majority of training presentations conducted during this reporting period were presented live using virtual technology rather than in person. The Council also developed a new online training program for local elected officials to satisfy the statutory requirements of § 2.2-3704.3 (effective July 1, 2020). Because some users had technical difficulties with one version of the local elected officials training, the training module was made available in multiple pre-recorded formats and used to accompany live presentations.

For this reporting period, the Council responded to 2,000 inquiries. Of these inquiries, four resulted in formal, written opinions, three of which were requested by citizens, none by media representatives, and one by a government representative. The remaining requests were for informal opinions, given via telephone and email. Of these requests, 1,300 were made by government officials, 639 by citizens, 56 by media representatives, and one by an unidentified source. 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 2019 and 2020, there has been an increase in inquiries about training for local elected officials pursuant to new § 2.2-3704.3, which went into effect on July 1, 2020. In March 2019, staff switched from using paper records to an electronic spreadsheet to track informal requests. This year, the data regarding such inquiries is presented in a graphic format for the first time (see Appendix F to this report).

FOIA was again the subject of significant legislative activity in the 2020 Session. The General Assembly passed a total of 23 bills amending the Virginia Freedom of Information Act (FOIA) during the 2020 Session. Five bills passed the General Assembly that were recommended by the FOIA Council:

• SB 138, which (i) adds regional public bodies to the type of public bodies that are required to have a FOIA officer, (ii) requires FOIA training every two years instead of every year, and (iii) requires a FOIA officer's name and contact information to be reported to the FOIA Council when the officer is first trained and then only if the information changes;

• SB 139, which allows for live, in-person training, as well as online training for local elected officials, and clarifies that constitutional officers are subject to such training requirements;

• SB 140 and identical bill HB 510, which amend the current exemption for donor records by clarifying that the exemption does not protect "information relating to the amount, date, purpose, and terms of the pledge or donation or the identity of the donor" except if "the donor has requested anonymity in connection with or as a condition of making a pledge or donation" or if "the pledge or donation does not impose terms or conditions related to academic decision-making"; and

• SB 153, which (i) adds that the time to respond to a FOIA request is tolled for the amount of time that elapses between notice of the cost estimate and the response from the requester; (ii) adds 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; and (iii) 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.

A more detailed report of the bills discussed above and other public access bills passed during the 2020 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 virtual meetings technologies has increased tremendously across all public bodies at both the state and local levels due to the COVID-19 pandemic, and as a result, there has been a noticeable increase in inquiries concerning electronic meetings. As previously mentioned, the Council recommended two draft bills concerning electronic meetings to the 2021 Session of the General Assembly and intends to continue the study of electronic meetings issues next year.

In 2020, the Council welcomed new members Delegates Marcus B. Simon, who replaced Delegate Luke E. Torian, Delegate William C. Wampler, III, who replaced Delegate Glenn R. Davis, Jr., and Chidi I. James, who replaced Michael Stern as a citizen member, all appointed by the Speaker of the House. The Council thanks Delegate Torian, Delegate Davis, and Mr. Stern for their service.


(*4) House Bills 321 (Levine, 2020) and 5090 (Hurst, 2020 Special Session I), and House Joint Resolution 628 (Heretick, 2019 Session).
(*5) Subdivision A 3 of § 2.2-3708.2 of the Code of Virginia.
(*6) 2020 Acts of Assembly, c. 1289, Item § 4-0.01 (g).
(*7) 2020 Acts of Assembly, c. 1142.
(*8) Subdivision 10 of § 2.2-3705.1 of the Code of Virginia.