This session. I mean it. This session!
It’s been a crazy, unexpected and wild ride. And while I may need a little perspective before I can accurately characterize the session, my initial impression is that it has been a mostly positive one for transparency in state and local government.
There were many good bills introduced this session by a wide variety of people from across the political spectrum. There were a couple of really awful bills, but they were far and few between. Ten years ago we sometimes stuggled to get our message across in the House subcommittee with more luck in the Senate. This year, the House FOIA subcommittee was ON IT. They asked all the right questions and listened carefully to the sometimes arduous testimony. The bills didn’t always go our way, but it’s always a consolation when you leave feeling you were given a good shake.
First, the good bills that have passed (or are well on their way to passage):
- HB 220 makes the résumés and applications for gubernatorial appointments public (and not the working papers of the governor).
- HB 817 and SB 494 will undo the Supreme Court’s decision that essentially gutted FOIA’s duty to redact. Despite resistance from the Department of Corrections, which feared having to redact everything but the headings of a policy manual, the bill now contains an “enactment clause” that explains its purpose is to put everyone back in the same position they were in prior to the Supreme Court’s decision.
- HB 818 will require local public bodies to post FOIA rights and responsibilities information on their websites as the state agencies already have to do (many local governments and school divisions already do this) and it would require each local government to designate a FOIA officer to serve as a contact point for FOIA requests (requests do not have to be processed by this individual, there just has to be a liaison).
- SB 89 requires the posting of minutes of an electoral board on the website of the county or city it serves.
- SB 493 clarifies that the personnel exemption cannot be used to discussed raises for the public body (i.e., a city council can’t it to discuss giving everyone on city council a raise).
And, of course, HJ 91 recognizes VCOG’s 20th anniversary this year!!!!
Still pending are several bills that amend FOIA in terms of local threat assessment teams or sexual assault response teams, for example, that were sufficiently narrowed to be acceptable, and two that close a loophole to extend exemptions to certain law enforcement agencies and not others also passed.
SB 645. This is a bill that expands the critical infrastructure exemption and that would have implemented a Byzantine procedure that would have allowed third parties to object to a government’s decision to release records in its own discretion. The House FOIA subcommittee voted to table the bill after the bill’s patron declined an offer to sever the objection-procedure and pass the rest of the bill. As can sometimes happen to bills that are “tabled” (instead of passed by indefinitely, or that fail to report), the bill came back up for consideration today (Feb. 1) in a radically altered form that narrows the exemption and eliminates the objection mechanism. In this form, the bill passed the subcommittee and was headed to the full General Laws Committee.
VCOG was pleased to see several bills defeated:
- SB 202 would have said that instead of requiring disclosure of salaries over $10,000, the minimum threshold for release would be twice the minimum wage (today, that’s just over $30,000), and would have banned “publicly averrable databases” of salary with name information.
- SB 552 would have made the names and training records of police officers exempt as personnel records.
- SB 678, which, in its amended form, would have given localities of more than 40,000 people and extra 10 days to fill a FOIA request.
All three may be studied by the FOIA Council
Several bills we liked were also defeated (or withdrawn at the patron’s request), though several (marked with an asterisk) are headed to the FOIA Council for study.
- *HB 61 had several iterations, but all were aimed at making the penalties for ignoring FOIA requests more harsh.
- *HB 334 would let a judge invalidate an action taken at a meeting where notice of the meeting was defective.
- *HB 432 and SB 492 would have opened up the closed investigative files of law enforcement to some extent.
- *HB 698 and HB 757 both deal with codifying a right of the public to speak at public meetings.
- HB 800 would have required closed sessions to be recorded for use when the propriety of a meeting’s discussion came into dispute.
- HB 819 would have required the release of any video showing a correction or jail officer subduing an individual when it leads to the individual’s death.
- HB 985 would have increased the number of working journalists to the FOIA Council from one to two.
While our primary focus has been on the Freedom of Information Act, there were many other transparency-related bills we followed (some up close, some from a distance). Among them:
- HB 760, which requires the Auditor of Public Accounts to make certain data on Commonwealth Datapoint more informationally and more graphically rich. (The bill was scheduled for hearing in a Senate committee at press time.)
- SB 500, which would have required school divisions to post their expenditures online, was defeated in a Senate Committee.
- SB 667, which would have prohibited the Division of Legislative Services from posting a report listing the governor’s pardons, passed the Senate on a 23-15 vote but was defeated in the House Rules Committee
- All 10 of the bills that would have affected the way public notices of various government actions are communicated to the public were either sent to the Joint Legislative Audit and Review Committee for a multi-year study or were defeated.
And then there was HB 1315, a bill to require a recorded vote on all legislation, which was also killed in the House Rules Committee . . . without a recorded vote.