FOI Advisory Council updates
Council opinion summaries
In AO-11-07, the council concluded that the sheriff of Madison County had to release the names of the citizens he appointed to a citizens’ advisory committee. The sheriff cited §2.2-3705.1(10) (as the Attorney General did in his opinion about releasing the names of concealed weapon permit holders to justify withholding personal information, like names). The council pointed out, however, that that exemption applies only to personal information submitted to a government for the purpose of receiving government news electronically. Also, the council added, the exemption only applies if the citizen has asked that his information be withheld from disclosure.
The council agreed with the sheriff, though, that the committee was not a public body covered by FOIA. Though FOIA applies to committees and subcommittees of local governing bodies that hold public meetings, the sheriff is a constitutional officer and does not hold meetings in the same way. Consequently, committees he sets up are free to meet outside the parameters of FOIA.
A judge agreed with the council on the first issue (see cover story).
In AO-12-07, a requester asked the Virginia Department of Social Services’ Division of Child Support Enforcement for the names, addresses, phone numbers and case numbers for open cases in a particular county, and specifically with reference to non-custodial parents. The CSE refused the request, and the requester wanted to know if an exemption applied.
The council ruled that the records had to be withheld. That is, §2.2-3705.5(14) says that records required to be kept confidential under §63.2-102 could be withheld, and §63.2-102 said that names, case information, etc., had to be withheld; that is, there was no discretion, as is the case with most FOIA exemptions.
CSE should release the information contained on the "wanted" posters it produced, though, regardless of §63.2-102, as they have already been publicly disseminated without violating that section.
In AO-13-07, the council confirmed that when the real estate exemption is invoked in the public-meeting context, there must be some indication that public discussion of the acquisition or sale of the property in question would be jeopardized. Absent that jeopardy, the discussions should be open. The Accomack-Northampton Planning District Commission held at least three meetings in secret despite the fact that a purchase price had already been settled on. The council added, though, that a renegotiation of that purchase price could be discussed in private.
The council’s first opinion of 2008 was to a Big Stone Gap librarian who asked for library policies on pay and benefits. To the extent that such policies exist, the council confirmed in AO-01-08, they should be disclosed. The library’s failure to respond to the FOIA request at all was a violation of the act, the council said.
The council took up "working days" in AO-02-08, explaining that the 5-day time period for responding to a FOIA request begins the day after the government receives the request, and goes five working days from there. Weekends and holidays do not count toward the 5-day total.
And in AO-03-08, a lengthy opinion to a Prince William County citizen, the council felt the local school board improperly cited exemptions on proprietary records and security and terrorism-response plans when denying access to lists of people (other than students) scanned through the schools’ security systems.
The council okayed the closed meeting of the Roanoke City Council under the contract-negotiation exemption (§2.2-3711(A)(29)). In AO-04-08, the city council was following the Virginia Public Procurement Act regarding the formation and award of a procurement contract -- including proposed terms and scope of the contract -- and asserted that the city would be adversely affected if the discussion were held in public.
The council also said in AO-05-08 there was no FOIA violation in requiring all people entering the building where the public meeting would convene to show photo identification. The council refused to speculate on whether the ID policy violates any constitutional provisions.
Asked about a request for records made to Prince William County in the county’s implementation of a strict immigration-status verification ordinance, the council said in AO-06-08 that records containing general policy matters should be disclosed, but that records detailing the way the policy will be implemented can be withheld.
In several of the 2008 opinions, the council reiterated several FOIA "best practices": citizens should be clear when making FOIA requests; government should ask for clarification if it does’t understand something about the records request; and both sides should work together to avoid disputes.
Also at the council
In other advisory council news, Sandra Treadway, the new Librarian of Virginia, took Nolan Yelich’s seat on the board, and George Whitehurst, Communications and Publications Manager for the Fredericksburg Regional Chamber of Commerce, took over Stewart Bryan’s seat.
John Edwards, editor and publisher of The Smithfield Times, and Virginia Tech communications professor Wat Hopkins both ended their terms June 30, 2008. Edwards will be replaced by former Virginia Coalition for Open Government director Forrest M. "Frosty" Landon, while John Selph, a Fredericksburg-area businessman, will succeed Hopkins.
At his last meeting, Edwards successfully lobbied for the council to adopt a policy statement expressing a preference, when possible, for all government meetings to be held face-to-face. The vote was 6-5, with Edwards and council members Del. Morgan Griffin, R-Salem, Treadway, Whitehurst, Criag Fifer and Ralph "Bill" Axselle, voting in favor.
The council released its 2007 annual report in December. From Dec. 1, 2006, to Nov. 30, 2007, the council fielded 1,708 inquiries, 13 of which were for formal written opinions. Seven of those requests came from citizens, three from media, two from government and one from out of state.
The council received 1,695 requests for informal advice through telphone and e-mail inquiries. Local and state government asked 852 of those questions (plus two more from federal government), citizens accounted for 628 questions, 167 from the media and 46 from out of state.
On the records side, the highest number of questions related to the response time required by FOIA. For meetings, the highest number of questions concerned whether a meeting had actually occurred.
After its June 2008 meeting, the council’s subcommittee to study personal identifying information, held jointly with the Joint Commission on Science and Technology, convened for a staff briefing on the bills to be studied.
Four bills from Del. Mark Sickles, D-Alexandria, all having to do with keeping Social Security numbers confidential, will be considered. According to council executive director Maria Everett, Sickles has indicated that the highest-priority bill of the four is the one that would create the Protection of Social Security Numbers Act.
The council, without JCOTS, will study bills from Del. Adam Ebbin, D-Arlington, and Sen. Patsy Ticer, D-Alexandria, that would keep confidential names of those making anonymous donations to publicly owned museums. A representative from Alexandria, the locality seeking the museum exemption, was unable to provide any concrete examples of donors who were crime targets because of items donated to a public museum, but local-government attorney and council member Roger Wiley said the perception of being a target for crime was real, even if not logical. He also spoke in favor of granting leeway to people "who just want to be generous."
The subcommittee will study access to concealed-carry handgun permits. The legislative proposal worked up in a similar subcommittee last year failed during the legislative session.
The council’s electronic meetings subcommittee will also study last-minute changes to a bill on the permit-issuance process for state water and air pollution boards. The bill gives the boards their own rules for meeting electronically, even though FOIA spells out the rules for all local and state bodies that want to meet by teleconference or other electronic means.
-- Megan Rhyne
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FOIA Council Subcommittee on Rights & Responsibilities
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