Bad FOIA bills were few; other bills were pro-access
This year’s General Assembly session forwarded at least 20 bills affecting records and meetings under the Freedom of Information Act to the governor, with the majority containing either positive, neutral or procedural changes for open government, and only three critically limiting public information. Five “good” FOIA fixes came from the FOI Advisory Council study process; a handful are mere name changes; and at least one is attached to legislation that is otherwise in the interest of public disclosure.
The Coalition steadfastly opposed three that will become law anyway. VCOG generally supported another five or so; and monitored the rest for any committee amendment-shenanigans.
Two of the biggest bones of contention were over building and fire code complaints and trade secrets related to business-retention efforts. Requested by the Virginia Municipal League, three separate bills introduced by Del. Onzlee Ware, D-Roanoke, Sens. Mamie Locke, D-Hampton, and John Edwards, D-Roanoke, will cut off access to the names and addresses of people who report violations of state fire and building codes, much like the current exemption for names and addresses of people making zoning complaints against their neighbors. Locke’s bill, which the other bills were “rolled into,” will at least allow release of the information in the aftermath of a catastrophic event.
VCOG argued against an anonymous-complaint system, noting that it has been contacted over the years by people who couldn’t get information on the person (or people) who were making numerous, unfounded zoning complaints against them.
Dels. Ben Cline, R-Amherst, and Morgan Griffith, R-Salem, and Sens. George Barker, D-Alexandria, Edd Houck, D-Spotsylvania, Chap Petersen, D-Fairfax, and Ken Stolle, R-Virginia Beach, voted against the measure in their respective bodies.
The other lost battle was over business-retention data. Throughout the fall, the Virginia Economic Development Partnership met with VCOG, the Virginia Press Association and local government groups to work on records and meetings exemptions for the “confidential” and “proprietary” records provided voluntarily to a local, regional or state economic development authority for business-retention purposes.
Though VCOG did not oppose the concept, acknowledging the importance of keeping business and jobs in Virginia, especially in tough economic times, it did object to the lack of some sort of “earmarking” of exactly what information being provided was considered a trade secret.
The press association attempted to amend the exemption at the Senate General Laws subcommittee for FOIA, and at the full committee, by proposing a three-step earmarking procedure, much like the one used in several other exemptions under §2.2-3705.6: (1) ask for confidentiality in advance; (2) identify the materials that need confidentiality; and (3) explain why confidentiality is necessary.
When the amendments were rejected, VPA then announced before the House General Laws subcommittee on FOIA that it would ask the FOI Advisory Council to study adding an earmarking provision to all sections related to protecting trade secrets.
VCOG generally opposed a bill by House General Laws Chair Chris Jones, R-Suffolk, that cuts off access to some of the fund-raising data of the Veterans Services Foundation. VCOG reiterated the same opposition it had to a similar exemption granted last year to UVA’s fund-raising records: it opens the door to every fund-raising arm of the state to ask for a similar exemption. Upon suggestion from the press association, Jones agreed to remove a provision allowing for anonymous donors.
Senate Bill 1497, sponsored by Sen. George Barker, D-Alexandria, originally said that the newly created Virginia Network for Geospatial Health Research Authority would not be subject to FOIA at all, a status conferred on only a handful of entities, like grand juries or the Virginia State Crime Commission. The Senate Finance Committee eventually amended the bill to eliminate that exception.
Some of the FOIA-specific bills that VCOG actively supported were three from Houck: one would require state agencies to post online a description of their records and their most-used exemptions; one clarifies that meeting minutes are to be “in writing”; and one cleans up provision in DEQ’s air and water permitting process that allowed some meetings to be held electronically without regard to FOIA’s rules on e-meetings.
All three bills were products of the FOI Advisory Council study process, and, as Houck told a House General Laws subcommittee in February, he was the patron on all of the bills because the House’s self-imposed bill limit hindered the ability of the council’s chair, Griffith, to bring the bills forward.
VCOG also actively supported a measure by Sen. Toddy Puller, D-Mt. Vernon, to clean up FOIA’s enforcement language. The measure made clear that the rules applying to ordinary actions for writs of mandamus do not apply to FOIA cases.
Del. Manoli Loupassi, R-Richmond, successfully marshaled a bill creating the Fraud & Abuse Whistle Blower Protection Act, described as a measure granting government employees freedom to report “instances of wrongdoing or abuse” by their employer or other government agencies or independent contractors. Noting that whistleblower protection is another way to reveal the workings of government, VCOG did not oppose an exemption offered with the new act for investigative notes submitted in conjunction with a whistleblower complaint.
Nor did VCOG oppose an exemption asked for by the Treasury Department for internal security control measures after the department worked with the press association to tighten the exemption up to apply to no more information than necessary. Similarly, the Virginia College Savings Plan alerted VCOG that it would be asking for an exemption for certain investment records, and VCOG did not oppose the bill, which was sponsored by Del. Kirk Cox, R-Colonial Heights.