FOI Advisory Council updates
by Megan Rhyne
Though many thought that the compromise hammered out by a FOI Advisory Council subcommittee last summer on electronic meetings was to be the last word on the subject for at least a few legislative sessions, several bills seeking to relax the rules even further were introduced during the ’07 session.
The evolution of the electronic meeting rules now heads into its third year, and with interactive technology evolving, too, there’s no doubt that further revisions will arise in the near future.
In 2005, a council subcommittee worked in conjunction with a JCOTS subcommittee on overhauling existing e-meeting rules to make them more practical. The legislation (passed in 2006) increased the allowable number of electronic meetings per year, shortened the notice requirements and insisted that a quorum be present at the meeting’s main location.
Another council subcommittee met throughout the summer of 2006, this time to decide that certain regional public bodies could use the same e-meeting rules that the state agencies do. The subcommittee also set out rules that would allow members of any public body -- even local ones, previously shut out of all electronic-meeting options -- to use electronic means to participate electronically in emergency situations, like a broken leg or a broken down car, or when temporarily incapacitated. The bill passed in 2007 and went into effect July 1.
Still, there were more bills on e-meetings. One bill, sponsored by Del. Beverly Sherwood, R-Winchester, went into law. It allows state public bodies to use electronic meetings when the governor has declared a state of emergency, so long as the meeting is being held to address the emergency and so long as the public body otherwise follows the rules for e-meetings.
A similar bill, introduced by Del. Adam Ebbin, D-Arlington, to allow e-meetings when a local emergency has been declared was referred to the FOI Advisory Council. The subcommittee tried to meet May 10, but the subcommittee’s chair, John Edwards, was the only committee member to show up. Without a quorum, no action could be taken.
A second meeting took place June 7 and a third on July 12. The local-emergency bill was redrafted to narrow its scope. The subcommittee agreed that the subject of an electronic meeting under this section would, like the Sherwood bill, have to be about the declared emergency, and it would have to be a "state of emergency," like a flood or a terrorist attack, not just "an" emergency. The subcommittee also agreed that meeting during a state of emergency has the added benefit of assuring citizens that their government is still operating to serve them.
Sen. Mary Margaret Whipple (D-Arlington) proposed to once again ease the quorum requirement so that an electronic meeting was good to go so long as there was a quorum at some location. Whipple said her motivation was the economic and environmental -- to get cars off the roads -- not anti-open government, but she did not attend either the May 10 or the June 7 meeting. The committee agreed that it would invite Whipple to the July 12 meeting to make her case, and then the committee would recommend that the full council take no action on the bill.
Similarly, the committee voted not to recommend any action on a bill offered by Del. Jennifer McClellan at the behest of the Richmond School Board. McClellan’s bill would have local bodies use electronic means to meet for informational and work sessions where no action would be taken.
Once again, fundamental differences emerged between government groups and access groups. Wiley argued that the committee would be acting like Luddites if it denied local governments the use of evolving technologies, while Craig Fifer, a council member and member of the Virginia Coalition for Open Government Board of Directors, argued that the principle was inconsistent with the consensus reached last year that face-to-face meetings are preferable.
Ultimately, the subcommittee decided not to recommend the bill to the full council, and Edwards offered a resolution at the end of the July 12 meeting (and to be submitted to the full council at its September meeting) endorsing a preference for face-to-face meetings (see sidebar).
Personal identifiers subcommittee
Perhaps because it was an election year, the 2007 General Assembly pumped out a raft of proposed legislation to restrict public disclosure of personal information. The bills ranged in scope from the very narrow -- only specific personal information in specific instances -- to the very broad -- excluding every conceivable type of personal information from any kind of disclosure ever.
Many of the bills passed (see General Assembly story, page 1), a handful was killed, and eight were referred to the council for further study by a subcommittee. At a May 10 meeting held in the cavernous House Room C, instead of the more intimate Speaker’s Conference Room where many of the council subcommittees meet, a handful of legislators presented their bills to the committee, and council executive director Maria Everett presented the remainder. Everett also noted that access to the concealed weapons database would be included in the considerations.
Much of the information presented at the May meeting mirrored the information already imparted during the legislative session, and the public was not offered a chance to comment on the bills. Nor was there any discussion about how the committee should proceed, what issues applied to all bills, what issues were unique, or even what the issues were.
The subcommittee met again on July 12, with members of JCOTS participating, too.
Much of the discussion focused on a bill by Del. Mark Sickles, D-Alexandria, that would exempt Social Security numbers. Under Sickles’ proposal, the numbers would be redacted from otherwise public records, the person whose SSN it was would retain access to the record, and individuals could "opt in" to allow their SSN to be disclosed.
As expected, debate centered on the merits of having access to at least some portion of an SSN (e.g., credit checks, background checks and differentiating between people with the same name) versus the real and perceived threat of identity theft and fraud.
Private investigators proposed creating access carve-outs for various groups and individuals, much like those used by the federal law governing driver’s license data. (VCOG has generally opposed the use of carve outs.) Access advocates also reminded the subcommittee that frequently government "over-collects" information like SSNs.
The group took no action, but agreed to meet again before the full council’s September meeting.
The subcommittee blessedly agreed to shelve Sen. Ken Cuccinelli’s, R-Centreville, bill, which Del. Joe May, R-Leesburg, called the "Uber Bill: broader than a barn and deeper than a well." The bill would have exempted any and all personal information from public records: date of birth, SSN, driver’s license number, bank account numbers, credit or debit card numbers, personal identification numbers, electronic identification codes, automated or electronic signatures, biometric data or fingerprints.
The subcommittee discussed, but did not take action on a bill from Del. Bob Brink, D-Arlington, that would exempt breed information on vaccination records other than animal licenses. The subcommittee is awaiting a bill redraft from a veterinarians group.
Bills from Del. Bill Carrico, R-Independence, and Sen. Creigh Deeds, D-Charlottesville, which would exempt personal data on applicants for hunting, fishing, boating and trapping licenses, were carried over for further discussion, though the problem identified by the bill patrons probably had more to do with over-collection of information.
Del. Danny Marshall, R-Danville, and Sen. Emmett Hanger, R-Mt. Solon, introduced bills that would keep secret the identity of anyone making a complaint about another person’s possible violation of a local ordinance. The subcommittee tabled the bill because there was no "appetite" to take it on at the time, despite testimony from the Virginia Association of Counties that often times people who make complaints are later harassed by those against whom the complaint was filed.
Finally, the subcommittee agreed to continue talking about whether identifying information should be deleted from constituent e-mails to local officials. Del. Mark Cole, R-Fredericksburg, and Sen. John Chichester, R-Fredericksburg, introduced the bills on behalf of Stafford County officials who said constituents often included a lot of personal information in their e-mails and had no idea they could be made public, possibly subjecting them to humiliation or harassment.
Bill opponents said identifying information serves a watchdog function, noting that the information led to the revelation of a too-cozy relationship between developers and Loudoun County officials. Despite some initial agreement that the information be made public, Sen. Edd Houck, R-Spotsylvania, and Del. May eventually expressed support for the concept and urged further "tightening up" in the future.
Face to Face
John Edwards, FOI Advisory Council member, VCOG board member and publisher/editor of The Smithfield Times, will offer this resolution at the council’s September 10 meeting.
The Freedom of Information Advisory Council has perennially reviewed numerous proposals to modify and expand the use of remote technology in public meetings. The Council’s findings have led to FOIA amendments that have given public bodies greater meeting flexibility at the state, regional and local level.
Though the council, as evidenced by its findings in these numerous proposals, believes that technology can protect and, in some instances, even expand public monitoring of and participation in the affairs of government, it has also concluded consistently that the cause of representative government is best served when face-to-face meetings of public officials are the standard, rather than the exception.
The dynamics of having policy makers, staff and the general public in the same room cannot be replaced by audio devices, and are limited even where full audio/visual connections are possible. Persons who accept elected or appointed public office accept certain responsibilities which, the Council believes, include their regular participation in face-to-face public meetings.
With that as a guiding principle, the FOIA Council remains convinced that local public bodies should continue to be required to hold their meetings only where they are physically assembled in one location, and that state public bodies continue to be required to have a quorum physically assembled.
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