FOI Advisory Council updates (opinions)
by Matt Haynes, VCOG Intern
The Freedom of Information Advisory Council has issued six opinions from January to early July. The opinions addressed a variety of issues, including the ability of a public body to close meetings, to charge for redactions, and to refuse to disclose certain portions of an electronic mail message.
AO-01-07 answered a question from two employees of the Warren Sentinel, a newspaper in Front Royal, Virginia. The question concerned whether their Town/County Liaison Committee (Town of Front Royal/Warren County) had properly convened a closed meeting to discuss the formation of policy addressing Front Royal’s distribution of water and sewer services to future developments outside of the town’s limits. The council explained that to close a meeting under the FOIA a public body must, in a motion to close, make specific reference to an applicable exemption to open meeting requirements under the FOIA. Here, the committee referenced the exemption allowing meetings to be closed for consultation with legal counsel on specific matters requiring the provision of legal advice. The council relied on several court opinions and opinions of the Attorney General in explaining that the exemption used by the committee does not apply to a mere desire to discuss general legal matters or policy decisions. The council concluded by stating that because there appeared to be no specific legal matter or dispute at issue, that portion of the meeting should likely have been open to the public.
In AO-02-07 the council responded to a member of Southeastern Public Service Authority who had asked whether a public body could charge for non-legal staff time spent redacting exempt portions of a requested record. The council explained that a public body may not charge for any legal review of documents by in-house counsel or outside attorneys but that it can charge an appropriate wage for administrative tasks (regardless of whether an attorney or staffer completes the tasks) related to the document search; in other words, document review and redaction cannot be charged separately. The council also determined that a public body cannot charge for the legal review of requested materials.
The council addressed the concerns of a citizen of Front Royal in AO-03-07. Here the citizen asked the council whether a public body (in this case Prince William County) could withhold a portion of an electronic mail (e-mail) message showing the time the message had been received by the public body (the header). The citizen claimed that Prince William County refused to release a copy of an e-mail request he had sent to the County that included the header showing when it had been received. The council then concluded that because the information generally contained in the header of every e-mail message is not information that describes the design, function, operation or access control features of any security system (which is information exempted from disclosure under the FOIA and cited as the reason for rejection by the public body), that his request should not have been denied.
The council’s next opinion, AO-04-07, denied a request. The council explained that the request, asking if SSN’s could be redacted from boat titling and registration records under the Government Data Collection and Dissemination Practices Act (GDCDPA), was outside the scope of the council’s authority under the FOIA. They stated that while they are directly authorized to issue opinions on laws that directly relate and interact with the FOIA, the requested opinion required interpretation solely within the confines of the GDCDPA and was therefore outside of the scope of their authority.
The editor of Broadside, a George Mason University publication, questioned the council regarding the status of the University’s Student Government Association (SGA) as a public body subject to the FOIA. The council concluded in AO-05-07 that the SGA qualifies as public body subject to the FOIA because, in accordance with the Act’s definition of public body, it is an organization in the Commonwealth supported wholly or principally by public funds. Public records requests can be made to the head of each branch within SGA because the FOIA identifies the head of a public office as the custodian responsible for keeping and maintaining records. The SGA’s legislative branch, unlike the executive and judicial branches, is a deliberative body with voting members and therefore is subject to the open meeting requirements of the FOIA. As a result, the same rules preventing any determinative voting in a closed meeting and allowing individuals to seek judicial remedies against violations do apply to the SGA. The council noted, however, that the FOIA’s scholastic records exemption allows records to be withheld if they directly relate to a student and are maintained by an education institution or its agent. As such, the council stated, this exemption would only apply to the SGA if they created scholastic records while acting as an agent for the university, a determination that can only be made on a case-by-case basis. The council went on to explain, however, that a similar open meetings exemption does not require the public body to act as an agent for the university and allows closure if scholastic records are discussed by any public body. The final issue addressed by council identified the impeachment of a public official as an appropriate topic for discussion in a closed meeting. The FOIA allows for closure of meetings to discuss the performance of specific individuals. Impeachment, the council explained, does fall under the exemption’s umbrella term "discussion" because any impeachment requires the discussion or consideration of an individual’s performance.
Opinion AO-06-07, addressed an inquiry from an Exmore resident voicing concerns that the local town council improperly convened a closed meeting. According to the complaint, the Exmore Town Council published notice of a meeting to begin at 7 p.m. but held an unannounced closed meeting at 6 p.m. In order to convene a closed meeting, a motion must be made in an open meeting that sets forth three essential elements: (1) the subject of the meeting, (2) the purpose of the meeting, and (3) a citation to an applicable exemption. After reviewing the draft minutes provided, the council opined that this requirement had been violated. First, the minutes failed to reflect that the town council properly voted to approve a motion to convene a closed meeting, relying instead only upon an announcement that they would adjourn to a closed meeting. Additionally, assuming that the announcement qualified as a motion, the noted purpose for adjournment failed to properly identify the subject of the meeting. The noted purpose for adjournment referenced a specific exemption, but without any additional description of the subject matter, this reference does not qualify as properly identifying the subject of the meeting. Finally, the council explained that all closed meetings must be certified in an open meeting through a recorded vote, providing each member an opportunity to verify that only lawfully exempted public business was discussed and that this business was the same as had been identified in the motion to convene the closed meeting. Here, the minutes provided that the matters discussed in closed session differed from those identified in the Mayor’s statement and, as a result, failed to meet the FOIA’s certification requirement. Each violation of the FOIA noted above was compounded the Town Council’s failure to properly provide notice of their 6:00 p.m. meeting, leaving the council unable to certify any portion of the town council’s actions as valid.
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