FOIAC's hears 3 proposals at its 2009 legislative preview meeting

 

The FOI Advisory Council heard about three bills that might surface in the 2010 General Assembly session at its annual Legislative Preview meeting.

The University of Virginia is seeking an exemption for "all records" generated by a threat assessment team (TAT) at a Virginia public school. TATs were mandated by law in response to the shooting massacre at Virginia Tech. Public colleges and universities are required to set up TATs to develop policies and procedures for assessing individuals whose behavior may pose a risk, for setting up appropriate means of intervention and for taking sufficient action to resolve potential threats.

UVA's representative Rob Lockridge accepted on-the-fly tweaks to the specific language and conceded that some of the records would be exempt under the scholastic records exemption to FOIA and the Family Educational Rights and Privacy Act.

The Virginia Press Association and the Virginia Coalition for Open Government expressed concern, however, that the proposed exemption appeared to shield records in perpetuity. Both organizations urged that the exemption include its own exemption for TAT records related to some sort of incident, such as another shooting. Many other exemptions in FOIA have these after-the-fact kinds of release mechanisms.

Lockridge initially opposed the idea, saying he felt TAT members might be less than candid if they thought their comments would eventually be revealed.

The council urged VPA, VCOG and UVA to get together to see if they could work out a compromise.

 

 

James Council appeared before the full council to discuss a proposal to directly counter a bill offered last year by Sen. Toddy Puller (D-Mount Vernon) related to the procedures for filing a FOIA lawsuit.

Puller's bill essentially said that service-of-process rules for mandamus actions found outside FOIA did not apply; only FOIA's procedures should apply. The unintended consequence, according to Council, was the elimination of any kind of advance notice to the defendant of a FOIA case filed against it.

Council offered two options. One was to revert to the original language, that is, basically repealing Puller's bill. VCOG pointed out that the bill was an attempt to help out citizen litigants who might not know to look in other parts of the Virginia Code for service-of-process rules. There was no attempt to eliminate notice.

The Advisory Council agreed, then, that a second option offered by Council might be more appropriate: one that makes clear within FOIA that advance notice is required.

 

Anthony Troy, an attorney at Troutman Sanders in Richmond, brought up a third proposal, also related to FOIA litigation.

Troy represents Gloucester County Board of Supervisors Chair Teresa Altemus in her FOIA lawsuit against the State Police. Troy made a request for records on Altemus' behalf that was wrongly denied. When he filed his lawsuit, he was told he had to file it in his name, since he was the one who requested the records, not in Altemus' name, even though the records were for her.

Since the case was filed in Troy's name, the judge said he could not, therefore, recover his own attorneys' fees for the denial of records to him.

Troy told the FOI Advisory Council that FOIA should therefore be amended to make clear that a FOIA case can be brought in the name of the individual for whom the lawyer made the FOIA request.

Troy's proposal to the Advisory Council also seeks to specifically include expert witness fees within the attorneys' fees and costs and FOIA allows a winning FOIA plaintiff to recover.

In asking for attorneys' fees in his case with Altemus, the State Police, represented by the Attorney General's office, hired an expert witness to testify about the reasonableness of the attorneys' fees. Troy hired his own expert in response. The judge agreed that Troy deserved attorneys' fees, but said that because FOIA did not specifically include expert witness fees, he could not recover what he paid his expert witness.

Troy agreed to work with VPA and VCOG to tinker with the concepts and language of both proposals.