Subcommittee positions 1/28/16

Position

Rationale

Notes

HB 61

Support

FOIA’s current penalties do not serve as an adequate deterrent to intentional misapplication of the law. The possibility of a criminal penalty (for only the most egregious violations) would incentivize government employees and officials to take FOIA’s records and meetings procedures with the utmost seriousness.

This is not a novel or unique proposal. At least 11 other states have attached criminal penalties of some sort to violations of state open records/public meetings laws. Arkansas and Florida law even contemplates jail time.

HB 280

Support

Site plans should already be accessible under FOIA as is. However, not all localities have followed this precept. HB 280, 281, 282 and 383 would ensure that site plans for development projects are not withheld simply because they are submitted in connection with an economic development project.

HB 281

Support

See HB 280

HB 282

Support

See HB 280

HB 334

Strongly Support

As noted for HB 61, the current penalties for FOI violations are inadequate to serve as a deterrent to misapplication of the law. By tying the validity of an action to proper notice to the public of a meeting, there is incentive to make sure the public is always apprised in advance of government action that will directly or indirectly affect them.

This is not a novel or unique proposal either. Roughly one-half of other states have some sort of mechanism for undoing actions taken in improperly held public meetings.

HB 336

Neutral

As long as the exemption is narrowly focused on the names/addresses of minors with library privileges, VCOG does not oppose this proposal.

HB 383

Support

See HB 280

HB 432

Strongly Support

The criminal investigative records exemption is arguably the broadest exemption in all of FOIA because it does not specify WHAT can be included in the criminal investigative file, and it does not impose any time limit for when those records must be released.

There needs to be some mechanism to access closed investigative files or there is no way for the victims or defendants or ex-convicts or their families, academics, researchers or advocates to evaluate the way in which the police and prosecutors handled a particular case.

Files are subject to redaction, thus informants’ names, for example, can be redacted from a file before releasing it.

Several other states allow access to closed investigative files.

There are two bills pending (HB 1197 and SB 552) that would restrict release and/or publication of various information related to police officers. Together with the current practice of routinely exempting closed investigative files and exempting administrative investigations, the police can essentially operate without oversight.

HB 698

Strongly Support

As surprising as it may seem, there is no right of the public to speak at ordinary public meetings. Citizens can certainly talk to elected officials individually, but there is value in being able to address all members of a public body at once, and to have other members of the community hear those comments. It is a way for stakeholders to identify each other or to identify opposition. A guaranteed right of some sort of public comment means the public is engaged in the democratic process, not merely witnesses to it.

There is another bill pending in the House Counties, Cities & Towns Committee (HB 757) that addresses public comment periods, suggesting specific amounts of time. VCOG takes no position on what constitutes the optimal amount of time for public comment. Under HB 698, public bodies would still be able to fashion time, place and manner rules that best suit their needs.

HB 800

Strongly Support

Say a citizen believes that a meeting was closed improperly — that the topic was one that should have been held in open session. If that citizen were to challenge the closure in court and would, there is currently no record of the discussion that should have been held openly.

The same is true if the closed-door discussions veered into topics or areas not covered by the motion to go into closed session. Members who feel the discussions were inappropriate are supposed to note their objections when emerging from a meeting. If those discussions are challenged in court, the judge has no way to assess whether they did or did not.

At least nine other states have some sort of requirement that minutes or recordings of closed meetings be kept. In most of these instances, as with HB 800, the recordings are only available in the event of an adverse legal judgement against the public body.

HB 817

Strongly Support

The majority opinion in Department of Corrections v. Surovell practically eviscerated the duty to redact, relying on certain phrases and terms of art within the language of each exemption instead of on the policy statement of FOIA and the specific duty to redact found in 2.2-3704.

In our experience, local and state governments followed the principles of redaction and were just as surprised by the Supreme Court’s decision as VCOG was.

HB 818

Strongly Support

State government already requires the designation of a FOIA contact point as well as an explanation of rights and responsibilities. Some localities do this already, but many do not. Citizens should have a reliable entry point rather than having to have a comprehensive knowledge of the organizational structure of one governmental entity to the next.

Further, having a designated officer is helpful for government employees, too, in particular those who do not have a familiarity with FOIA. If served with a FOIA request, these employees can immediately contact the designated officer for help.

This bill does not tell a locality how to handle its FOIA requests internally. The designated officer can be a facilitator or can be actively involved in the process.

HB 819

Strongly Support

See HB 432

Though targeting a specific issue, the general principle that police investigative records have become virtually inpenatrable applies here, too.

HB 985

Strongly Support

See HB 817

HB 986

Support

More citizen voices are needed on the FOIA Council.

HB 1013

Neutral