2013 General Assembly update at crossover

FOIA - amendments to the act itself that are still pending

HB 1524 (Villanueva) - For over eight years, FOIA has exempted certain parks and rec records of children signing up for programs. The exemption has an opt-out provision that triggers the exemption. This is consistent with FOIA policy that everything is presumed open unless an exemption or prohibition applies. This bill would reverse that presumption so that it would be triggered automatically unless a parent had opted-IN. This isn't about kids, it's about public records policy: the presumption should always be to opt out of release, not opt-in to disclosure.

HB 1639 (Greason) - Would exempt the working papers of General Assembly members' legislative aide. VCOG opposed this as originally worded because it would have given the aides their own wide-ranging exemption. It has been amended and it's passed the House to clarify that it only applies when the aides are working on the legislator's behalf.

HB 1855 (Knight) - Exempts proprietary records submitted to the Department of Aviation by public-use airports. The department came before the FOIA Council in 2010 to say they were concerned about flight plans involving high security detail (i.e., the Governor) and about grant application information. VCOG did not take a position.

HB 2026 (Dudenhefer) - Adds a "personal matters" exception that allows a member of a public body to participate in a meeting via electronic means. This bill, which is also part of SB 1263, comes out of the FOIA Council. VCOG has said the provision is not needed because a personal matter would fall within the emergency exemption in existing law, but we did not oppose it.

HB 2043 (Robinson) - Adds the public Jamestown-Yorktown Foundation to the existing exemption for closed meetings when discussing specific gifts, bequests, etc. VCOG took no position.

HB 2280 (Ward) - Adds disaster preparedness plans to FOIA exemption for terrorism tactical plans. VCOG originally took no position, but when the delegate explained that she was trying to protect information related to hospital preparedness plans, we may try to amend the bill when it gets to the Senate.

SB 1263 (Stuart) - This is the omnibus bill that makes changes to the rules for state agencies meeting electronically. Certain committees or advisory boards of the state agencies could now meet without having a quorum physically present in one location so long as audio AND video equipment is used. No position.

SB 1264 (Stuart) - A reorganization of the criminal records section of FOIA. Includes a provision to specifically address 911 calls. Support.

SB1334 (Norment) - Would exempt materials produced by third parties for training of state prosecutors where the materials would reveal tactical or strategic plans. The bill has been amended to cover only those materials, and not other materials produced by or for the Commonwealth Attorneys' Services Council.

SB1371 (Stuart)- This bill says that in a FOIA lawsuit to get records that have not been released, a court can refuse to require the release if the requester has filed so many FOIA requests that it unreasonably burdened the government, prevented the government from meeting its operational responsibilities or was made to evade payment of past FOIA charges. There are existing provisions in FOIA for government to deal with these circumstances. This provision would create a mechanism to punish a frequent FOIA requester -- including the news media -- for no other reason than that he/she is a frequent FOIA requester.

FOIA - amendments to the act itself that have been defeated, withdrawn, defeated, etc.

HB 2032 (May) - Lets regional public bodies take advantage of the exact same rules state bodies have for meeting electronically. It also lifts the requirement for having at least 1 in-person meeting of the board. VCOG opposed this mesa sure, which was a JCOTS recommendation. VCOG prefers the FOIA Council measures that resulted from hours of talks about electronic meeting policy by stakeholders. The bill is being sent to the FOIA Council.

HB 2125 (Keam) - VCOG strongly supported the first part of this bill, which would open Virginia's FOIA up to all U.S. citizens. We opposed another part of it, though, that would have required prepayment of bills of $100 or more, which was a bit of a sop to government agencies worried about not being able to collect on unpaid bills for out-of-state requests. The bill has been sent to the FOIA Council .

HB 2134 (Keam) - Would have requires state agencies to include in their FOIA rights and responsibilities web page a schedule of allowable charges. VCOG supported this measure, but it was killed outright in subcommittee. Opponents thought it would be an administrative burden to determine their costs and some feared that if charges were posted then state agencies would have felt compelled to charge, instead of giving records for free, as they sometimes do, and others worried that the charges posted wouldn't necessarily be reasonable, as the act requires.

HB 2321 (Surovell) - Would undo the Virginia Supreme Court's ruling that the State Corporation Commission is not subject to FOIA. VCOG supports this measure -- we believe that the agency should be under the framework of FOIA, but with exemptions. The bill has been sent to the FOIA Council.

HJ 745 (Hope) - Would direct the FOIA Council to study whether to eliminate the section of FOIA that excepts certain entities, including the Parole Board, from the act's requirements altogether. VCOG supported this bill, too, for the same reasons as HB2321, but it was killed in the Rules committee.

FOIA - amendments mentioning FOIA other Code sections

HB 161 (Gilbert) is the omnibus bill dealing with the use of unmanned drones. It contains some provisions that limit disclosure of some information but also includes an affirmative statement that some materials are subject to FOIA. VCOG supported amendments worked out by VPA, but the bill was eventually rolled into Del. Cline's bill that imposes a moratorium on drone use until July 1, 2014.

HB 1790 and SB 1138 (S. Garrett, McWaters) - Creates the Virginia Nuclear Energy Consortium. In one part of the bill it says it's "a public instrumentality exercising essential governmental functions," but later in the bill it says that the consortium "shall not be deemed to be a state or governmental agency . . . for purposes of" FOIA and a number of other state laws. It also contains an exemption from FOIA for certain records provided to the Auditor of Public Accounts. On the House, some amendments were added to ensure that certain documents would be made public. The Senate bill has not made it out of the Commerce & Labor Committee yet.

HB 1821 and SB 1211 (Iaquinto and Stuart) - Exempts from FOIA records in the possession of the State Police pursuant to its duties under the Child Pornography Images Registry. VCOG opposed the bill unless it could be amended to ensure that certain statistical data was released, but both bills were withdrawn, so the issue is moot.

HB 1952 (Landes) - Requires governing boards of public colleges to undergo annual training on a range of topics, including FOIA. VCOG supported this bill, which has passed the House.

HB 2178 and SB 930 (Albo and Vogel) - Includes a FOIA exemption for certain proprietary records for "network bingo." VCOG supports amending or removing the FOIA exemption. There is a slight indication that the patrons might agree to that.

SB 802 (T. Garrett) - Allows two people of a 3-person electoral board to talk by phone to arrange a meeting (they'd be otherwise prohibited because 2 people make up a quorum, thus requiring notice under FOIA). We supported this as an acknowledgement that three-person boards are hamstrung when it comes to meeting logistics. The overall provisions states clearly that substantive issues cannot be discussed. The bill has passed the Senate.

SB 889 (Black) - Would allow school boards to meet electronically in the same way state agencies are allowed to. As with HB 2032, we prefer the FOIA Council measures. This bill is being recommended for the FOIA Council.

Public notice bills

HB 1823 (Villanueva) - Requires local RFPs to be posted on state procurement website in lieu of newspaper publication. It makes a nod towards last year's objections by saying it doesn't apply to contracts not expected to exceed $100,000. VCOG opposes this bill because the optional nature of where to post the notice means there will be confusion and that fewer people will actually see the notice. HB 1790, which was nearly identical, was incorporated into the bill, which is still on the House Floor.

HB 1373 (Head) - Would have localities of 50,000 or more to use their websites instead of newspapers for public notices. The bill was amended to reduce the population down to 30,000 and it would have required localities to meet certain technical and website modification requirements before taking advantage of it. VCOG opposed the measure because fewer people will see notices on government websites and because there's no independent third-party verification that the notice ran. The measure was killed in subcommittee. HB 1378 was a similar measure that was incorporated into HB1373 prior to its defeat.

SB 765 (Carrico) - Would allow website notice for the towns of Glade Spring and Damascus was killed in committee. VCOG opposes this measure (the town websites don't even include their budget, much less public notices). An identical House bill died in subcommittee.

Other access-related bills

HB 1692 (Jones) - Requires unsolicited bids to develop/operate transportation facilities (i.e., ports) to be posted online and public comment solicited. Also requires the major business points of the interim or comprehensive agreement of the winning bid to be posted online. Support. HB 1887 (LeMunyon) - Requires review of MWAA's public records policies. VCOG supported it, but it was killed in subcommittee

HB 1889 (LeMunyon) - Prohibits the release of teacher performance indicators. No position. The material is says it's protecting is already part of the personnel file.

SB 1143 (McEachin) - Prohibits lawmakers from attending conferences that do not have publicly available materials. Support.

SB1335 (Obenshain) - (Not FOIA, but still an access bill.) Allows the clerk of court to seal the concealed handgun permit application of someone who has a protective order. We are not taking a position on this bill, which passed the Senate. We oppose measures to close off across-the-board access to CHPs, we have no opposition to closing off access to those who have been granted protective orders.

A House bill that would have allowed for a court to order the removal of a defendant's name from an online docket has already died in subcommittee.