1999 Overview and FAQ

• Closed-door discussion of legal matters must be limited to probable or actual litigation; probable litigation is more narrowly defined as a lawsuit “specifically threatened or on which (there is) a reasonable basis to believe will be commenced by or against a known party”; an attorney’s written advice to a governing body need not be disclosed; however, the mere presence of a lawyer in an executive session no longer can be used as a reason for confidentiality. The act does not permit closure of a meeting merely if a government attorney is consulted on a general policy question.

• Closed-door discussions of real-estate matters must be limited to specific transactions where premature disclosure might hurt a government’s bargaining position. Closed-door discussion of “use” or “condition” of real estate no longer is permissible.

• A new provision in the state code allows counties to maintain tape recordings in lieu of written minutes, at “regular informal meetings” where no actions are taken. Prior notice of such meetings must be provided. Draft minutes and audio/visual records of open meetings are explicitly defined as public records.

• Notice for all public meetings, including date, time and place, must be posted in prominent locations at which notices are regularly posted, at least three working days before the meeting; notices also must be posted in the office of the clerk or chief administrator of the public body. Electronic postings are also encouraged, including use of e-mail, when requested, for prior notice of meetings. (Hint: In some instances, it might be wise to renew a request for personal notification once a year; and to ask for notice of all meetings involving a public body’s committees and subcommittees.)

• Clarifies procedures to be followed by public bodies in convening a closed session: Subject matter and purpose of the meeting must be disclosed, along with specific reference to the applicable FOIA open-meeting exception; subject matter and specific reference to a closed-door FOIA exemption will not be sufficient. A general reference to the subject matter is specifically prohibited. The subject and purpose of the meeting must be spelled out in detail in official minutes. The old law’s requirement for a “reasonably” specific explanation was repealed.

• A 15-month test of videoconferencing is authorized for legislative and some executive-branch agencies, the Joint Commission on Technology and Science and for community colleges. (As in the old law, electronic meetings at the local level are forbidden.)

• Public records are to be disclosed “promptly,” but generally no later than within five working days (as in the old law, all requests must be answered within the five-day period, whether or not there has been a FOIA reference). The requested record may be provided at an Internet Web site or by e-mail transmission; record requests need not be in writing but are to be made “with reasonable specificity.” Any refusal to disclose information must cite what specific section of federal or state law allows or requires secrecy and must identify “with reasonable particularity” the volume and subject matter of records being withheld. (A proposed ban against any subsequent change in claimed exemptions was defeated by a House committee; however, if this continues to be a problem, it should be reported to the coalition.) “If it is not practically possible to provide the requested records or to determine whether they are available within the five-workday period,” the custodian “must specify the conditions,” which make an immediate response impossible. In such cases, an additional seven working days will be allowed for the custodian to provide all, part or none of the requested records. “When a portion of a requested record is withheld, the public body may delete or excise only that portion of the record to which an exemption applies and shall release the remainder of the record.”

Computer Records

• Records maintained in a computer must be disclosed at a reasonable cost in any available format and in a requested format when possible. Excision of an exempt field of information must not be regarded as creation of a new record. (Note: Virginia’s FOIA does not require creation of a record when one does not exist; unless the information involves public salaries exceeding $10,000 per year. However, government officials are explicitly urged to reach an accommodation with record requesters whenever possible.)

Fees

• Fees cannot include “any extraneous, intermediary or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body.” As in the old law, reasonable charges, if any, must be limited to actual cost in accessing, duplicating, supplying or searching. Advance payment can be required if the cost is likely to exceed $200.

Working Papers

• Limits the working-papers exemption to legislators and highest-ranking state and local government officials. Exempts only those records prepared by or for the official’s personal or deliberative use. Narrows the working-papers exemption for the Office of the Governor and for the lieutenant governor, the attorney general, members of the General Assembly, city managers, school superintendents and county chief executives. Defines “Office of the Governor” as the governor, his chief of staff, counsel, director of policy, Cabinet secretaries, the director of the Virginia Liaison Office, and those (two or three) individuals to whom the governor has delegated his authority by written executive order.

• Clarifies the exemptions for written legal opinions of local government attorneys and legal memoranda compiled specifically for use in litigation; the discretionary exemption also covers “written advice of the government attorney” to a local-government client and any other records protected by the traditional attorney-client privilege.

• Personnel records can still remain confidential; however, the new law permits any adult who is the subject of the record to make it public if he or she wishes.

• Clarifies the scholastic records exemption, making it applicable only if information is “directly related” to a student.

• Creates a new section within FOIA to deal exclusively with the release of “criminal-incident” and “noncriminal” incident records. Date, general location of a felony, identity of an investigating officer and a general description of the incident, including any injuries suffered or property damaged or stolen, must be disclosed. (Portions of the information may be withheld if it jeopardizes an ongoing investigation, prosecution or individual’s safety; if it might cause a suspect to flee; or if it might result in destruction of evidence.) Arrest records must be disclosed in all circumstances. Noncriminal information must be disclosed except for portions containing information of a personal, medical or financial nature if release would jeopardize someone’s safety or privacy.

• In any FOIA enforcement action, the public body will bear the burden of proof to establish its right to invoke an open-government exemption.
• Public officials must read and familiarize themselves with the FOI law.
• The minimum and maximum fines for FOIA violations have been raised to $100 and $2,500, respectively. The previous minimum was $25. For a subsequent violation, the minimum is increased from $250 to $500; the maximum is raised from $1,000 to $2,500. Fines must be paid from an official’s personal funds.
• Improved definitions of public records and public bodies are included in the opening chapters of the act. “All public records and meetings shall be presumed open, unless an exemption is properly invoked.” Official records hereafter will be called “public records;” executive sessions will be called “closed meetings.”
• The act has been reorganized to make it simpler to use; redundant language is eliminated; clarifying language has been added or substituted to make it easier to understand.

• Miscellaneous other FOIA changes involve new or existing exemptions that deal with the Virginia Higher Education Tuition Trust Fund; the Commonwealth Health Research Authority; Virginia State Apple Board; and local and regional child-fatality review teams. Exemptions covering the Virginia Museum of Fine Arts, the ABC Board and the Department of Corrections relating to security manuals, surveillance techniques and architectural and engineering drawings of their facilities are placed in a single exemption.