FOIA legislation in the 2005 session -- and some miscellany
of possible interest
New FOIA amendments and other key bills are underlined; please notify us of omissions
Establishes permanent, uniform rules in FOIA for video- and tele-conferencing
by state's public bodies. Recommended by FOI Advisory Council and Joint Commission
on Technology and Science. (Combined with SB1196)
Extends for 2 more years the University of Virginia's special reporting rules
for electronic meetings
Amends an existing FOIA exemption to include investigation of suspicious deaths
by a new Adult Fatality Review Team.
Killed, House Appropriations
Sponsor: Sen. Wampler;
General Laws Committee
Creates meeting and record exemptions for confidential proprietary records
and trade secrets. Stricken by the sponsor.
Requires the library board or governing body of a library that receives state
funding for any purpose to include in its acceptable use policy for the Internet
provisions requiring the selection, installation and activation on those computers
that have Internet access a technology protection measure, as selected by the
Library of Virginia, to filter or block Internet access through such computers
to child pornography, obscenity or information harmful to minors. The bill also
requires the library board or governing body to actually select, install and
activate the technology protection measure.
Killed in Senate committee
Allows the district court clerk to destroy court records after electronic imaging.
Killed in Senate committee
Purpose: Orders auditor of public accounts to set up a user-friendly Web site
on the state budget and state spending.The auditor would be directed not only
to post 10 years’ worth of figures, but to track spending trends so that
citizens could follow the financial "paper trail." Statistical trends
also would be included, such as school enrollment, prison populations and income
levels. Approved unanimously. House WMTA amendment in conference.
Sen. Devolites Davis
Provides that a referendum committee that continues in existence more than six
months after the referendum is held may either file a final report or continue
as a political committee subject to the filing requirements for political committees.
Requires that the record of any future divorce suit not contain the social security
number of any party or of any minor child, or any credit card or bank account
number. This type of information, to the extent required by law to be provided
to a governmental agency, shall be contained in a confidential summary order.
Dissolves the Virginia Information Providers Network as a separate division of
the Virginia Information Technologies Agency (VITA); amended to restate FOIA
Provides that confidential records and information obtained from private and
public entities and provided to the Office of the Chief Medical Examiner (OCME)
during the course of a death investigation and records collected and maintained
during the course of investigations, surveillance programs or research or studies
of deaths having a public health importance by the OCME are exempt from disclosure.
(A Freedom of Information Act exemption was removed from the bill in subcommittee.)
The bill also provides that the records of the OCME may not be subject to subpoena
or discovery in criminal or civil proceedings.
Creates an ombudsman for children's services. "Records concerning closed
cases shall be subject to the disclosure requirements of the Virginia Freedom
of Information Act, but in a manner that does not identify any complainant or
any person unless (i) such complainant or person or his legal representative
consents in writing to such identification or (ii) such identification is required
by court order." Stricken at patron's request.
Relaxes contribution-reporting rules in non-election years for local government
Revises certain provisions relating to minors' health records to provide a measure
of consistency with the federal regulations that were promulgated by the federal
Secretary of Health and Human Services pursuant to the Health Insurance Portability
and Accountability Act concerning access to and authority to disclose protected
Establishes a permanent council to operate, maintain, and preserve Capitol Square,
which includes the State Capitol, the Executive Mansion, the Bell Tower, and
the area surrounding the Capitol enclosed by the iron fence installed in 1818
and its extension. The council will have sole authority to coordinate and approve
any additions, improvements or renovations and will oversee state appropriated
funds for the operation, maintenance and renovation of Capitol Square. FOIA meeting
rules will be followed, Joint Rules' powers notwithstanding.
Killed in Rules Committee
Anti-phishing bill, companion to HB 2304
Amended to create a new FOIA exemption for advice on judicial ethics given to
a judge by the Judicial Inquiry and Review Commission's (originally, the bill
removed JIRC from FOIA altogether)
Approved by Senate, 39-0; approved in House 85-10. Voting no: Alexander, Armstrong,
BaCote, Hamilton, Melvin, Moran, Putney, Spruill, Van Yahres,
Sen.. Devolites Davis
Clarifies that clerks are able to provide secure remote access to any document
which is filed among the land records in the circuit court and allows them to
also provide secure remote access to any person and his counsel to documents
filed in matters to which such person is a party. The bill also clarifies that
the Supreme Court is not prohibited from providing online access to a case management
system which may include abstracts of case filings and proceedings in the courts
of the Commonwealth. Extends the sunset clause to July 1, 2007. Amended to remove
a proposed ban on postings by individual citizens.
Relaxes FOIA rules for electronic meetings; requires 7-working-day notice,
physical presence of quorum at primary meeting site.
Renews effort to televise and webcast the floor sessions of the House of Delegates
Killed in House Rules Committee; voting yes: Callahan, McDonnell, Landes,
Asks the State Board of Elections to study clarification and reorganization of
the Campaign Finance Disclosure Act. Input would be sought from "one or
more non-profit groups with an interest in Campaign Finance disclosure in Virginia.
Del. Frederick (for the Dept. of Agriculture and Consumer Services)
Amended to remove FOIA exemption for "identifying information for restricted
fertilizer . . . having a potential explosive capacity that is determined to
present an unreasonable threat to public safety.
Killed in committee
Increases penalties for violations of Campaign Finance Disclosure Act.
Provides that any board member or prospective board member of a Crime Stoppers,
Crime Solvers or Crime Line program shall not be required to pay for a criminal
history records check for appointment to such a board.
Provides that any person who on more than one occasion uses any type of still
or video or motion picture camera to record the image of an individual, who is
not a public figure, when he knows or reasonably should know that the individual
does not wish to have his image recorded, is guilty of a Class 2 misdemeanor. Stricken
by the patron.
Allows clerks to continue to charge 50 cents a page for copies of clerks' records -- but
requires clerks to give the state any part of the 50 cents that represents profit.
Amended to say "the costs of making out the copies shall include lease and
maintenance agreements for the equipment used to make out the copies, but shall
not include salaries or related benefits. The costs of copies shall otherwise
be determined in accordance with (FOIA)"
Requires public schools to more accurately report criminal incidents
Makes it a crime to spread unathorized computer spyware; killed in committee
(issue to be studied)
Proposed FOIA record exemption § 2.2-3705.1. #10
Revises FOIA record exemptions to require withholding of e-mail addresses whenever
citizens ask for electronic mail from government (unless the subject of the record
waives, in writing, the proposed privacy protection (changes FOIA from presuming
a record is open to presuming the record is closed). Recommended by House General
Laws Subcommittee, 3-1; killed in full General Laws Committee, 14-3. (Voting
in support of the measure: Wright, McDougle and Danny Marshall)
Creation of a videotape, photograph, film or videographic or still image record
created by placing the lens or image-gathering component of a recording device
in a position to capture an image of the person's undergarments, genitals, pubic
area or buttocks when the undergarments, genitals, pubic area or buttocks would
not otherwise be visible punishable as a Class 1 misdemeanor.
Approved; in conference committee
Creates a human rights agency to investigate discrimination charges; provides
for confidentiality prior to public hearings. Killed in committee, 12-4
Requires legislative committees to meet by mid-year to consider carried-over
legislation, with an opportunity for the chief patron to address the merits of
the proposed legislation. To be revisited by Rules next year.
Legalizes e-filing your absentee-ballot application.
Killed in committee
Makes clarifying and technical changes to the Virginia Public Records Act. The
bill removes obsolete definitions, clarifies existing definitions of "archival
records" and "public records," and creates a definition for "private
record," a term that is used in the Act but not currently defined. The bill
removes references to the preservation of medical records, an area of law that
has been superseded by other state and federal medical records laws, and programs
for microfilming records by The Library of Virginia, a service not provided by
The Library of Virginia. The bill also clarifies that a public record may not
be destroyed or discarded unless certain requirements are met. This change
codifies current practice. This bill is a recommendation of the HJR 6 study (2004).
Del. Bob Marshall
Eliminates any jurisdiction of the State Corporation Commission to regulate voice-over-Internet
protocol service. Voice-over-Internet protocol service is excluded from the scope
of the definitions of telephone service, telecommunications service, local exchange
telephone service, and interexchange telephone service
Amended, approved in House, 90-7; killed in Senate committee
Del. Bob Marshall
Requires each public and private two- and four-year institution of higher education
in the Commonwealth to publish annually a descriptive report detailing the (i)
purpose, amount, use, and distribution of student fees assessed each semester
or during an academic year; and (ii) the name of each organization and student
leader, if applicable, including the nature of the organization's activity, that
receives funding of $100 or more from student fees. The bill also requires institutions
to post the annual report on its website to facilitate access and availability
of the report to students enrolled at the institution and their parents.
Establishes a database to track payment of PayDay loans.
Killed in committee
Purpose: Removes absentee-ballot restrictions.
Killed in committee
Del. Dwight Jones
Provides that the fees charged to persons with incomes at or below 150 percent
of the federal poverty line for copies of court documents shall not exceed $0.10
Killed, Courts of Justice committee
Del. D.C. Jones
Only the person seeking the payday loan may make a direct inquiry to the designated
third-party provider to request a more detailed explanation of a particular transaction
that was the basis for the database's determination that the person was ineligible
for a loan. Any information regarding any person's transactional history is confidential
and exempt from the Freedom of Information Act. Killed in committee
Del. Dwight Jones
Bans use of hand-held cell phones while driving.
Killed in committee
Requires increased budget disclosures by Dept. of Planning and Budget.
Passed by the House, 95-0; approved in Senate, 25-13
Non-FOIA change in handling civil commitment of sexually violent predators.
Approved; in conference committee
Changes name from license tax to gross receipts tax and repeals newspapers' exemption
from the tax. It allows localities to exempt newspapers from the BPOL tax provided
they are exempt from state sales tax. However, if the locality imposes the tax
on newspapers, 50 percent of the revenues generated from the tax on newspapers
must be used for the locality's arts, cultural or tourist attractions. Killed
Requires General Assembly candidates to file campaign finance reports electronically
Amended by Privileges and Electikons Committee to allow continued filing of paper
reports, with a filing fee of $25. Stricken on House floor
Provides that the Department of Emergency Management shall be responsible for
the coordination, receipt, evaluation, and dissemination of emergency services
intelligence and shall coordinate intelligence activities with the Department
of State Police. The bill creates a records exemption under the Virginia Freedom
of Information Act for contact information, computer information and operating
schedule information submitted by an individual or agency for participation in
the Statewide Alert Network.
Higher education reform act. Approved unanimously in House
Expands the Prescription Monitoring Program to include reporting by out-of-state
dispensers (nonresident pharmacies) and prescribers licensed in other states
and to cover the entire Commonwealth. Discloses information for the purpose of
bona fide research or education to qualified personnel; however, data elements
that would reasonably identify a specific recipient, prescriber, or dispenser
shall be deleted or redacted from such information prior to disclosure. Further,
release of the information shall only be made pursuant to a written agreement
between such qualified personnel and the Director in order to ensure compliance
with this subdivision. Stricken in committee. Combined with HB2866 (charter bill
Extends the sunset clause prohibiting clerks from posting sensitive personal-identifying
information on a court-controlled website from July 1, 2005, to July 1, 2007.SB827;
continues remote access via subscription. Amended to provide immunity for clerks
unless they're grossly negligent in the handling of subscriber-only land records.
Provides that using a version of the National Do Not Call Registry obtained from
its administrator no more than 31 days prior to the date of a telephone solicitation
call constitutes a reasonable practice and procedure to effectively prevent telephone
solicitation calls that would violate the Virginia Telephone Privacy Protection
Act. The establishment and implementation of reasonable practices and procedures
to effectively prevent such telephone solicitation calls is an affirmative defense
to an action claiming a violation of the Act. Currently, such defense is available
to telephone solicitors that use a version of the National Do Not Call Registry
obtained within three months preceding the date of the call. Reducing the period
from three months to 31 days makes the Act consistent with federal regulations.
Repeals BPOL tax exemption for newspapers, magazines, other publications; see
Killed in committee
Creates a newspaper-only tax; see HB2000
Killed in Committee
Prohibits the disclosure online via the Physician Information Project of malpractice
settlements that are required to be reported by insurance companies, and limits
reports to the Board of Medicine from individual physicians to malpractice judgments.
The settlements will still be reported to the Board of Medicine by the malpractice
Killed in House Courts, 15-3. Voting yes: McDonnell, Black, Marrs
Modernizes the Virginia Computer Crimes Act by updating definitions to comport
with changing technology, removing superfluous language and relocating language.
The bill adds unauthorized installation of software on the computer of another,
disruption of another computer's ability to share or transfer information and
maliciously obtaining computer information without authority as additional crimes
of computer trespass, a Class 1 misdemeanor. Approved
Anti-phishing bill, companion to SB1147. Combined with HB2631.
New public-safetry exemption: Allows 911 subscriber data to be kept confidential
Creates record and meeting exemptions for proprietary records and trade
secrets developed by or for wireless service authorities
Provides that the localities within the Potomac and Rappahannock Transportation
Commission may meet at two or more locations simultaneously, linked by telephonic
or video conferencing as long as each location is public and has met all advertising
requirements. Measure stricken by the patron.
Amends the Virginia Consumer Protection Act to prohibit a supplier from using
a consumer’s social security number when the consumer requests that his
driver’s license number be used. Current law requires that a supplier only
provide an alternate number if the consumer so requests in writing. This bill
provides consumers with another option other than providing their social security
numbers and writing to the supplier for a new number. Approved in House
Amends the Personal Information Privacy Act to prohibit (i) intentionally communicating
an individual's social security number to the general public; (ii) printing an
individual's social security number on any card required for the individual to
access or receive products or services; (iii) requiring an individual to use
his social security number to access an Internet website, unless an authentication
device is also required; or (iv) mailing a package with the social security number
visible from the outside. The bill exempts public bodies and public records.
Approved in House; stricken in Senate committee at patron's request.
Seeks consistency with federal law for confidential health records; companion
to SB1109. Approved
Del. Chris Jones
Amended, seeks to end uncertainty surrounding when PACs need to file pre-election
reports by scrapping them altogether and replacing them with (1) quarterly reports
and (2) year-round requirement to report all donations of $10,000 or more within
two working days. Approved
Revises the Public-Private Transportation Act of 1995 (PPTA) by authorizing memoranda
of understanding and binding preliminary agreements among the parties to negotiate
in good faith; authorizing the negotiation of developers' fees, management fees,
and similar financial incentives to attract private sector investment in light
of the risk profile and other investment opportunities; requiring that appropriate
action be taken to protect intellectual property, trade secrets, finance plans,
and other confidential and proprietary information contained in proposals; and
authorizes use of confidentiality agreements in connection with any comprehensive
agreement, service contract, lease or, or other agreement. Approved
Amends an existing meetings exemption to allow closed meetings to discuss
records exempt from public disclosure relating to the Public-Private Education
Facilities and Infrastructure Act (PPEA)
Stricken by patron; PPEA issues sent to FOIA Council for study
Establishes Adult Fatality Review Team ("Team") to review suspicious
deaths of adults in order to create a body of information to help prevent future
fatalities. Information obtained or generated by the Team regarding a review
shall be confidential and exempt from disclosure requirements under the Virginia
Freedom of Information Act (§ 2.2-3700 et seq.). Such information shall
not be subject to subpoena or discovery or be admissible in any civil or criminal
proceeding. If available from other sources, however, such information and records
shall not be immune from subpoena, discovery, or introduction into evidence when
obtained through such other sources solely because the information and records
were presented to the Team during an adult death review. Killed in Appropriations
Requires agencies and businesses that maintain computerized data that
includes personal information to notify the subject of that information
when a breach of the database containing that information is discovered.
No notice is required if an investigation determines that there is no
reasonable belief that the information has been or will be used in an
unlawful manner. The bill provides for various means of notifying the
owner or licensee of that information and requires the agency or
business to coordinate notification with consumer reporting agencies if
they indicated that the affected individual can obtain a credit report. JCOTS
Directs State Board of Elections to make spot checks of campaign finance reports
for accuracy and completeness.
Killed in committee
Del. Jim Scott
Exempts records of active investigations being conducted by the Department of
Criminal Justice Services involving the private security business
Allows local government to meet via phone and video-conferencing. Retains all
other e-meeting rules that currently exist in FOIA.
Sent to FOIA council for study, at Reese's request.