2019 legislative wrap-up

A look back at the bills VCOG followed in the 2019 General Assembly session

Though the fate of many bills rests in the governor's pen -- and any subsequent vote to override a possible veto -- for all intents and purposes, the 2019 General Assembly session came to an end February 24.

VCOG started off the session tracking nearly 75 bills that would have some impact on the Freedom of Information Act or on other aspects of public access to government records and meetings.

In the end, through many twists and turns, 29 of those made it all the way to the end, including a couple that are identical, or almost so, to each other. 

The public's right to know got a real boost from four bills (one with a duplicate) in particular.

Sen. Mark Obenshain's SB1431 will require local elected officials to receive regular FOIA training from the FOIA Council.

Sen. Chap Petersen and Del. Jason Miyares both sponsored bills that will require public colleges and universities to hold some sort of public comment period prior to an attempt to raise tuition. The bills were amended slightly to allow the hearing to be with a subset of the full board, rather than requiring that the whole board be in attendance. (The final, full text of the agreed-upon language has not been posted, but this is close to what it will look like.)

Sen. Scott Surovell's SB1554 may shake things up the most. That bill would allow specific penalties for specific types of actions: (1) $100/record for records altered or destroyed with the intent to avoid a FOIA request; and (2) up to $1,000 if a public body -- when represented by an attorney -- certifies that a closed meeting was properly conduct when it wasn't.  (Again, the full text of the final bill is not available. See below for a reconstruction of what the meetings portion of the bill looks like.)

Del. Mike Mullin's HB1772 will boost the stature of FOIA Council opinions by allowing government, in a court action alleging FOIA violations, to show that it relied on a FOIA Council opinion and did not act willfully or knowingly to violate the act.

Only one bill (and its twin) that VCOG actively opposed made it through. The bills (actually, there were four very similar bills at the start) amend an existing exemption to allow the names of lottery winners to be withheld unless the winner gives written consent. The final version applies only to winners of $10 million or more, which is an admittedly small number of people. Working closely with the Virginia Press Association, VCOG advocated for a change to make the exemption and "opt-out," meaning the records would be public unless the winner asked for confidentiality, instead of opt-in.

The bills' patrons cited safety and security concerns for winners, noting a case in Georgia where a large-prize winner was robbed and murdered in his home. In opposition, VCOG stressed the importance winner names has in assuring that games are free of fraud, as was uncovered by The Virginian-Pilot, or corruption, as was investigated by news media in Iowa and Florida, for example. VCOG also noted that prize money could be used to set up financial planning and/or security measures.

VCOG's favorite bill (with House and Senate cohorts) that did not pass was the same one it has supported now for three years in a row: Sen. Glen Sturtevant and Del. Schuyler VanValkenburg proposed to require local government's and school districts of a certain size to post quarterly reports of their check and credit card expenditures. The bill was heavily opposed by localities and school boards, citing cost and the burden on employees, and Del. David Reid, who sits on the House subcommittee that has killed the bill all three years, worried that scammers could use the information to create fake invoices to submit for payment.

Two similar bills that would have required the Library of Virginia to release gubernatorial records within a year of receiving them made it all the way through both chambers with broad support before finally dying in a conference committee over a disagreement about how to pay for the staff and resources the library would need to carry out the mandate.

Several of the bills that VCOG followed and that passed amend existing FOIA exemptions by adding particular agencies. For example, the Fort Monroe Authority was added to an exemption for records and meetings about certain donor gifts. Similarly, the State Board of Elections was added to a meetings exemption for certain administrative investigations. Some bills added prohibitions to disclosure in other parts of the Virginia Code, such as records of rape kit testing and foster care complaints.

VCOG was able to work with some patrons to amend their bills to take out some FOIA amendments in their bill as duplicative or unnecessary. 

Meanwhile, amid the scandals that rocked the capital throughout February, VCOG's Megan Rhyne worked with this year's Chip Woodrum Legislative Intern, Leon Soria, appeared on a segment of This Week in Richmond with two lobbyists to discuss their work during session and penned an op-ed on tracking legislation, which she compared to drinking from a fire hose.

At the session's close, Sen. Amanda Chase and Del. Mark Levine presented the clerks of the House and Senate with a letter signed by two-thirds of the House and Senate members asking that subcommittee meetings be streamed/broadcast just as full committees are now. Notable was the fact that 11/14 committee chairs in the House and 5/11 chairs in the Senate did not sign the letter. VCOG wholeheartdly supports the request.

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* A reconstruction of the meetings provision of SB1554:

C. In addition to any penalties imposed pursuant to subsections A and B, if the court finds that a member of a public body voted to certify a closed meeting in accordance with subsection D of § 2.2-3712 and at the time of such certification AN ATTORNEY REPRESENTING THE BODY WAS PRESENT AND such certification was not in accordance with the requirements of clause (i) or (ii) of subsection D of § 2.2-3712, the court may impose THE PUBLIC BODY, whether or not a writ of mandamus or injunctive relief is awarded, a civil penalty of UP TO $1,000, which amount shall be paid into the Literary Fund.