Public bodies, lawyers & confidential settlements
(Posted 5/13/2009 by Megan Rhyne)
Va. laws take hit in court
(Posted 9/16/2008 by Megan Rhyne)
It's been a tough few weeks for the Commonwealth.
Despite being fought over by the candidates for president and vice president like she was the Corn Festival Queen, Virginia's had to endure the rains of Hanna, the price gouging of Ike and the scorn of the New York Times over its student voter-registration policies.
But perhaps it's the Virginia General Assembly that has most taken it on the chin, at least in court: On Aug. 22, a federal district court in Richmond struck down a law preventing the intentional dissemination of Social Security numbers, and on Sept. 12, the Virginia Supreme Court nixed the state's anti-spam law.
In the SSN case, the court really took the legislature to task, blaming it for creating the very situation the state now wanted to punish.
To protest the government's posting of land records containing SSNs online, privacy advocate B.J. Ostergren began harvesting SSNs from those records and posting them to her own Web site. A previous law permitted Ostergren's action so long as the numbers were taken from public records.
The 2008 General Assembly removed that exception and could have required Ostergren to pay $100 per violation.
The court wasn't buying the state's declaration that preventing the disclosure of SSNs thorugh online land records was an interest of the highest order:
"The record does not disclose when Virginia first started posting its land records online or when it became the practice for lawyers to place SSNs on documents filed in the publicly available land records. But, the parties agree that both practices have existed for several years. And, both parties agree that, in the past several years, identity theft has been steadily increasing and has been widely publicized. Indeed, several years ago, Virginia recognized that SSNs should be removed from drivers' licenses to afford protection from identity theft, replacing them with a different kind of identifying number that was not readily usable to falsify identity. . . .
"Mindful of these facts, the General Assembly, in 2007, enacted statutes that required the clerks of court to make all land records available on the Internet by so-called secure remote access by July 1, 2008. Also, in 2007, the General Assembly required the clerks, by 2010, to redact SSNs from land records before making them available online, but rendered that provision a nullity by conditioning its effectiveness on the availability of State funding and then declining to provide funding for redaction."
Continuing, the court said,
"The record here discloses no compelling reason for making land records available online. At oral argument, counsel for the Attorney-General advised that it was done at the request of the real estate industry. Whatever the reason, the settled law has long been that the burden of redacting private information from State records cannot be placed on those who would publish truthful information that is in records that the State had made available to the public."
The Virginia Supreme Court was more charitable, at least in its assessment of the state's motives and actions. In unanimously striking down the anti-spam law (thus overturning the conviction of Jeremy Jaynes, once said to be among the Top 10 spammers int he world), the court said the statute was too broad.
"That statute is unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mails, including those containing political, religious, or other speech protected by the First Amendment to the United States Constitution."
Everyone knows the risks and dangers of identity theft, and how the Social Security number can be the key to a person's whole external identity. Everyone agrees that spam can range from the annoying to the dangerous, as it jams up servers necessary for crucial communications. But quick fixes aren't the answer. Not when they trample on free speech or access to truthful information.
The state must tread carefully when seeking to block communication in its many forms. Precedent from the U.S. and Virginia Supreme Courts have laid out a road map for limiting speech within the bounds of the constitution. The rules are different when the speech is purely commercial or when it has a political message. But generally the government has to identify an interest needing protection, and it has to show that the new law advances that interest and burdens no more speech than necessary.
Rather than flirt with a potentially unconstitutional law, all efforts should be made to follow the courts' road maps. It is no doubt tempting to ignore them with a chorus of constituents shouting in one's ear. The concerns those constituents have are real, but they are sometimes exaggerated, and not always in the broader public's interest.
What is clear from these two court rulings, though, is that while the interests of constituents -- be they individuals, organizations or business -- are important, the constitutional consequences of proposed laws are equally as important.
FOI Advisory Council subcommittee on meeting minutes
(Posted 9/4/2008 by Megan Rhyne)
NOTE: The subcommittee was convened to study whether a change needs to be made to the minutes requirement of FOIA. 2.2-3707(I): "...Minutes shall include, but are not limited to, (i) the date, time, and location of the meeting; (ii) the members of the public body recorded as present and absent; and (iii) a summary of the discussion on matters proposed, deliberated or decided, and a record of any votes taken."
The issue was prompted by some local governments starting to use services like BoardDocs, which produce comprehensive agendas (with links to all supporting documents), as well as sound recordings of the entire meeting. The question was whether those recorded minutes met the 3707(I) minutes requirement.
Presentation on BoardDocs by Fred Morton, Superintendent of Henrico Public Schools.
saving a lot of $$ by using BoardDocs and saves time (once the start-up process was overcome)
requires members to be disciplined about identifying themselves or identifying who is speaking
there is a public version and a board version
[i was following along -- with high speed -- and it was taking a long time to download]
Question: can you tell when the version of a document was posted? Can you have confidence that this is the version that was presented vs. a corrected one?
Answer: you have to have faith
Requires staff diligence -- this is the historical record -- and the start-up learning curve is pretty steep.
Mechanism for being able to open multiple documents in different windows at the same time.
Security: Multiple servers to back up material, and files are saved locally.
Recorded files can be pinpointed in time w/ various media players, though not search by topic, subject, keyword, etc.
Roger Wiley doesn't like eliminating the written form -- it's historically been the historical record. 50 years from now, someone may not want to slog through everything just to get the precise point, and a CD has to be constantly reevaluated to verify they're accessible (SandraTreadway says CDs are not considered archival quality yet).
Maria Everett wonders what a board "approves" in terms of minutes if all there is is the recorded version
Though the statute doesn't say the minutes have to be in writing, that has been assumed and has been the common practice.
The subcommittee eventually recommends to clarify statute that minutes are written. Roger Wiley, Courtney Malveaux and Sandra Treadway vote in favor; E.M. Miller votes no.
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