FOI Advisory Council updates: FOIAC subcommittees submit draft laws
It was a tortuous journey, measured in straight lines, radii, traffic snarls and mountain roads, but the FOI Advisory Council’s subcommittee on electronic meetings finally produced a recommendation that the full council adopted at its Dec. 15 meeting. Draft legislation reflecting the recommendation will be introduced in the 2007 General Assembly session.
The e-meeting subcommittee, which first met on Aug. 9, was chaired by John Edwards, and included Roger Wiley, Sen. Edd Houck, D-Spotsylvania, E. M. Miller, Stewart Bryan, Craig Fifer and Mary Yancey Spencer, took four more meetings to finally get an acceptable draft.
The committee opted to adjust the e-meeting rules for all public bodies that can currently use them (state governmental units) instead of limiting itself to addressing only the concerns of regional public bodies. Regional public bodies were defined as governmental units organized by the General Assembly, whose members are appointed by local governing bodies and whose area covers two or more counties or cities.
The draft then aimed to address three distinct situations: (1) emergencies that prevent a public body member from getting to the regular meeting location; (2) a public body member’s temporary or permanent disability that prevents that person’s attendance at regularly scheduled meetings; and (3) regional public body members who live more than 60 miles from the regular meeting location.
Under the draft, in the first instance, the member must notify the public body’s chair of the emergency, and the body as a whole must approve the member’s absence, record in the minutes what the emergency was and note from where the member participated.
For temporary and permanent disabilities, the member must notify the chair, and the fact of the disability must be recorded in the minutes.
In the third instance, the member living more than 60 miles away must notify the chair that he/she wants to participate electronically, then the public body must approve the electronic participation and record in the minutes from where the member participated.
In all cases, a quorum must be physically assembled at the primary or central meeting location, and the public body has to make sure the person participating electronically can be heard at that site.
The committee expressed its overriding expectation that members of the public body would police each other, noting members who abuse these allowances and replacing those members if need be.
The so-called fifth-response subcommittee, chaired by Fifer and including Del. Morgan Griffin, R-Salem, Bryan, Spencer and Courtney Malveaux, also made headway, despite a momentary delay to address issues raised by Griffin in the FOI Advisory Council’s Oct. 11 meeting.
Under the proposed legislation, when a clerk or public employee receives a FOIA request, it must fill the request in full, or else notify the requester of one of four things: (1) that the records are being withheld entirely; (2) that the records are being partially withheld and/or redacted; (3) that the records cannot be found or do not exist; or (4) that more time is needed.
The two big changes are that earlier versions of FOIA counted providing all of the records as a response option. Now the presumption is that they will be provided unless one of the remaining four responses is invoked.
The other big change is that now requesters have to be told if the records can’t be found or don’t exist. Before, when records did not exist, clerks often took that as justification for not responding to a FOIA request at all. Requesters often felt they were being stonewalled, and animosity between clerk and requester often grew exponentially.
Under the new proposal, the record custodian, if he knows, is also supposed to tell the requester of where the records might be found.
Griffin worried that political rivals would bombard legislators shortly before election time with requests for records the requester knew did not exist. The subcommittee felt this was no more of a burden than some local clerks experienced when hounded by a citizen intent on harassment.
At its Aug. 23 meeting, the PPEA/PPTA subcommittee addressed the 11th-hour amendment to its previous compromise legislation signed by Gov. Timothy Kaine at the request of VDOT. Despite being present at workgroups during 2005 that sought to bring more of the public-private partnership process into public view, VDOT claimed that the department needed different rules for disclosure for multi-phase highway construction projects.
VCOG and the Virginia Press Association questioned the fairness of withholding early-stage information way past the point where disclosure would no longer harm the public entity or the private company, especially where longer periods of confidentiality would only keep the public (and losing contract bidders) in the dark.
Before the governor signed VDOT’s proposed change, a sunset clause was inserted to allow for further study by the subcommittee, chaired by Bill Axselle and also including Edwards, Wiley and Houck. The new proposal exempts evaluations prepared by staff or outside consultants for PPTA projects, but only if, after the contract is awarded, disclosure of these evaluations would still hurt the public entity, and the basis for the determination is documented.
At the council’s Dec. 15 meeting, VCOG and the Virginia Press Association again urged earlier disclosure, but the council accepted Axselle’s recommendation, which he said did require earlier disclosure, but which also tried to strike a balance with VDOT’s needs.
At its Oct. 11 meeting, the council formed a fourth subcommittee to address concerns raised by the Virginia Retirement System. VRS said the entity needed an exemption to withhold information on investment strategies or plans if release of that information could adversely affect the markets, and consequently the VRS portfolio. It also wanted to exempt records related to the selection of a fund manager. In both instances, the information would be made public after the investment or selection was made.
More controversial is VRS’s wish to shield information on investments made with private markets. Though it could cite only one example nationwide, VRS contends that some private market funds or companies won’t want to invest with VRS if they know certain information about them can be disclosed.
A subcommittee of Malveaux and Spencer met on Nov. 29, and though council Executive Director Maria Everett drafted a proposal, the subcommittee did not make a recommendation on it, and the full council on Dec. 15 did not endorse any proposed legislation, either.
Also of note at the Dec. 15 meeting of the FOI Advisory Council:
In light of the 3rd U.S. Circuit Court of Appeals’ ruling in August that a citizens-only limitation on the use of Delaware’s FOIA was unconstitutional (see page 8), the council agreed with a suggestion from VCOG to study elimination of a similar provision in Virginia law. In making his suggestion, VCOG Executive Director Frosty Landon noted that the attorney who won the 3rd Circuit case, a Georgetown University law professor, David Vladeck, is on the lookout for plaintiffs to challenge similar provisions in the 10 other states besides Delaware that have them. The council agreed that a legislative fix would be better than a federal court case.
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