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For the most part, there was good news on the open government front during the 2011 General Assembly session. Several pro-transparency bills were passed with ease. Some bills that VCOG felt were not in the public interest were defeated. Much of the credit for those defeats can be attributed to the general public, who contacted subcommittee members and their own legislators to oppose the bills.
The bill of greatest concern to VCOG this year was a repeat of a bill from last year that would let the government get a court order against a citizen who was "harassing" the government with FOIA requests. Last year the bill was sent to the FOIA Council for study, where no consensus could be reached.
The bill came back this year with a different patron, Del. Lynwood Lewis (D-Accomac), but with the same background story accompanying it: a part-time clerk in a small jurisdiction was overwhelmed by FOIA requests from a single person. As became clear during testimony, and like last year, too, it turned out the clerk didn't take advantage of stop-gap measures already written into the state's FOI law.
This year, the House FOIA subcommittee didn't send the bill, HB2383, to the FOIA Council. Instead they tabled the bill on an 8-1 voice vote.
VCOG publicized information about the bill and the hearings on the Coalition's daily email alert, website, Facebook and Twitter feeds, as well as in special legislative alerts. More than two dozen people told VCOG that they had contacted subcommittee members in opposition to the bill. A few people also came to the hearings.
VCOG also heard from several people who contacted the Senate FOIA subcommittee members to express opposition to SB812, a bill to prohibit the release of names in conjunction with salary or reimbursement data. At the subcommittee hearing, the bill's patron, Sen. Steve Martin (R-Chesterfield), amended the bill to say the names of elected and appointed officials could be released, but the subcommittee decided to send the bill in its original form to the FOIA Council for further study.
Also going to the FOIA Council is SB1467 from Sen. John Edwards (D-Roanoke) to create some sort of release mechanism for police investigative files after the investigation is "closed." The concept was studied by the FOIA Council last summer with no consensus.
A measure from Del. Bob Marshall (R-Prince William) will go to the FOIA Council, too. It would require every public record to be classified at its creation as either being required to be disclosed under FOIA or exempt. The bill would further require the status of records to be continually adjusted. Marshall stated in subcommittee testimony that the bill was directed at UVa for its failure to respond to his FOIA request for Michael Mann's climate-change email.
VCOG opposed the bill in subcommittee, and the VCOG Board of Directors approved a statement at its March board meeting that it would oppose any attempts to pre-classify a record as exempt.
FOIA Exemptions
Far fewer FOIA exemptions will be added this year than in past years:
An exemption for certain Medicaid fraud investigation data was added to an existing exemption for Social Services investigations;
An exemption for the records and meetings related to base-closure review committees established by executive order was added to an existing exemption for the Virginia Military Advisory Council;
A new exemption was created for certain pricing data of the Commercial Space Flight Authority; and
A new exemption was created for proprietary records an agricultural landowner submits in relation to a Resource Management Plan (this exemption was added by the governor shortly before the veto session).
A bill to regulate the use of fertilizers includes a provision that allows any personal data collected from various reporting requirements can be withheld under FOIA.
Other FOIA changes
HB1457 started out as a measure that would have let courts terminate or discipline an employee for violating FOIA. It ended up as a measure to double the penalties for FOIA violations. The bill came from Del. Bob Marshall, again arising out of the UVa email case.
(VCOG is hopeful that judges will see this amendment as proof that the legislature expects penalties to be assessed. To VCOG's knowledge, in all the FOIA cases in all the years, only twice has a judge actually imposed a penalty, and at least one of those was overturned on appeal. Contrast that to Washington state, where judges impose fines of $100 a day for failure to comply!)
HB2020 from Del. Joe May (R-Leesburg) will amend FOIA to clarify that records not used in the transaction of public business are not public records. This is a restatement of existing law, but May has been worried that a bad ruling in Loudoun County a few years ago – which was overturned on appeal – would nonetheless subject private records (particularly email) to FOIA.
(In Virginia, records about public business are subject to FOIA, whether they are kept on personal or government computers, or using personal or government email accounts.)
The 3-year journey of how much advance notice is needed before a FOIA case can be filed finally may be over. A bill changing the notice provisions was passed in 2009. An attempt to revise it was brought in 2010, but that failed when the Prince William school board balked at a prior agreement. Finally, after further study by the FOIA Council, Del. Richard Anderson (R-Prince William) and Sen. Toddy Puller (D-Mount Vernon) sponsored identical bills that will hopefully bring peace to the valley.
Another housekeeping FOIA measure brought by the FOIA Council chair, Sen. Edd Houck (D-Spotsylvania), clarifies that the Library of Virginia is the custodian of records sent to it by other agencies and local governments for archiving.
More open government
The voting histories of House of Delegates members will be online, but not those of senators. The bill that would have required both House and Senate to post voting histories online was converted into a House resolution aimed only at the House. The measure was co-sponsored by Del. Jim LeMunyon (R-Chantilly) and Del. Mark Keam (D-Vienna).
Another House resolution that would have required the digital recording of all committee and subcommittee meetings was killed in the House Rules Committee, but the House clerk was directed to investigate the cost and practicality of wiring the committee rooms.
Signature legislation from the governor's Government Reform & Restructuring Commission, patroned by Del. Steve Landes (R-Verona) will create a centralized Inspector General's office, consolidating existing IGs in other agencies and adding new powers.
A citizen-driven measure sponsored by Sen. Creigh Deeds (D-Charlottesville) to open up some records related to inspections of behavioral health service providers licensed by the state made it through the Senate but was killed in a House subcommittee. However, the governor's budget bill offered amendments restoring much of the transparency.
And local governments will be able to publish online more of what could be considered their checkbooks.
And then . . .
Restrictions were placed on when affidavits for search warrants could be made publicly available in a bill brought by Del. Manoli Loupassi (R-Richmond).
A bill offered by Sen. Emmett Hanger (R-Mount Solon) but killed in committee, would have allowed clerks of court to withhold from disclosure the applications of concealed handgun permit holders who have opted-out of mandatory disclosure.
Del. Barbara Comstock (R-McLean) surprised many by introducing a shield law to protect Virginia journalists from having to reveal their sources. The Reporters Committee for Freedom of the Press offered a critique of the proposal, which included concerns with how "journalist" was defined, and after talks with RCFP and the Virginia Press Association, Comstock agreed to pull the bill and work over the summer to craft a new bill.
Comstock also offered a bill to create a Government Transparency Advisory Council and would have established a website to aggregate various government data. The bill reported unanimously from the House General Laws committee but died in the Appropriations Committee.
Del. Chris Peace (R-Mechanicsville) carried a bill that eliminates or consolidates several boards and commissions, but it did not include the Freedom of Information Advisory Council, despite the Government Reform & Restructuring Commission's recommendation to eliminate it. |
, then a candidate, spoke to the group on Oct. 16, and more than a dozen panelists and moderators covered a range of topics: from FOIA basics and judicial selection, to anonymous juries and transparency in the Obama administration.
, currently counselor to Tim Kaine as Democratic National Committee chair and previously counselor to Tim Kaine as governor, said he appreciated the power the governor has to fill certain appointments without legislative approval, but also said it wasn’t the time to put all judicial appointments into the governor’s hands.
, sparred over the propriety of a Supreme Court advisory committee’s proposal to make juror names anonymous in all criminal cases.
of Citizens for Ethics and Responsibility in Washington, all expressed disappointment in Obama’s continuation of prior administration secrecy policies on detainee-abuse photos, state secrets privilege, and access to White House logs. (Obama issued an Open Government Directive Dec. 8, requiring, among other things, for agencies to decrease their FOIA backlogs by 10 percent each year. See related story, page 5.)