Ask us a FOIA question
The following are samples of questions Virginia citizens (and a few from outside the state) have asked us via the “Ask Us a FOIA Question” feature on our Web site, www.opengovva.org. We answer an average of seven questions per week. Questions are answered by VCOG Executive Director Frosty Landon and Associate Director Megan Rhyne. The following questions have been edited for style, length and clarity.
Q: My full legal name along with salary and title were recently published in a newspaper based on information they obtained through a FOIA request. Because my legal name is directly tied to my Social Security number and my name can be put in a search engine to obtain other personal information, what can be done to limit the disclosure of my full legal name when information is provided in response to a FOIA request?
A: Once your name is placed in a public record, I know of no legal way for it to be excised. (Citizens have the right to go to court for a protective order that keeps their address confidential, but I assume that is not the issue you are raising.)
The Virginia General Assembly is attempting to stop routine use of Social Security numbers in public records (as it should), but there is certainly no consideration being given to removing citizens’ names from such records. Indeed, all sorts of public records would be useless without individuals’ names — including voting records, property assessments, public officials’ salaries, e-mail discussion of public business, etc.
Virginia’s Freedom of Information Act requires disclosure of all public employees’ salaries above $10,000. Without such a requirement, there would be no effective oversight of public expenditures. Said another way, those who work in government do not and cannot enjoy the same privacy privileges generally afforded private citizens.
I know of no exemption in the FOI Act for even a discretionary withholding of names of FOI requesters. The statute permits record custodians to ascertain if a requester is a citizen of Virginia or a media employee covering Virginia. That provision inevitably means the name of a requester will become public record. Additionally, the FOI law stipulates that all government records are to be accessible to the public absent a narrowly interpreted FOIA discretionary exemption or an occasional mandate for confidentiality found elsewhere in the state code.
Q: We have had a number of people who, during the public-participation section of board meetings or in public hearings, submit written documents or written copies of their verbal comments for “the public record.” Recently, that has included newspaper and newsletter articles that support their cause. Does the county have to accept these items and must they be included verbatim in the minutes of the meeting?
A: FOIA does not get into much detail about what a public body’s minutes must look like or include. Section 2.2-3707(I) requires that minutes be taken, but says only that the minutes must include: (1) the date, time and location of the meeting; (2) the members of the public body recorded as present and absent; and (3) a summary of the discussion on matters proposed, deliberated or decided, and a record of any votes taken.
The Freedom of Information Advisory Council recently issued a formal opinion that went over what the third criteria encompassed. In AO-01-06, the council said that any motion or vote is a matter that has been “proposed, deliberated or decided,” so a summary of that item should be included in the minutes. Also, matters on the agenda are matters that are “proposed, deliberated or decided.”
Public bodies have a lot of discretion in deciding if matters have actually been deliberated, and whether a summary should be included, but, as the council says, “such discretion should not be used to exclude or obfuscate any matters of an official nature that have been considered by they public body.”
So, as to your question about the citizen exhibits, I think it comes down to whether the board — who will approve the minutes that are prepared — believes that these exhibits help summarize what went on in the meeting, then they should be included. And vice versa.
Whether or not the exhibits should be included will be a decision made on a case-by-case basis. It would be as unwise to have a blanket rule that no exhibits will be included in the minutes as it would be to have a blanket rule that all exhibits must be included in the minutes.
We have seen some minutes that severely limit summaries of the comments made by the public, which we think does a disservice to those who read the minutes later on. But if you decide that a citizen’s comments should be in the minutes but feel that including the documents would be overkill, then perhaps just include a summary of the citizen’s comments and the materials he/she submits.
Q: Can a local Foster Care Office for the Department of Social Services withhold their policies when requested?
A: If a written record exists, spelling out local policies and procedures, you are entitled to any and all portions not required by the state code to remain confidential — or explicitly exempt from the mandatory-disclosure rules.
If the records contain both confidential and non-confidential information, it is the responsibility of the office to excise confidential portions and disclose the remaining portions.
A state agency’s “policy” cannot trump the Freedom of Information Act, short of an explicit, discretionary FOIA exemption or code language that gives the “policy” force of law.
If you were not given a written response citing applicable exemption language, the law was broken.
Q: Is the Virginia High School League FOIA-ble?
A: The Virginia Freedom of Information Advisory Council has issued a formal opinion saying that voluntary organizations like the Virginia Municipal League, Virginia School Board Association, etc., are exempt from FOIA. Though their membership comes from publicly paid employees and institutions, and though membership dues probably come from the public coffers, it certainly has hallmarks of any other public body subject to FOIA. But as the FOIACouncil said about the school board association in AO-10-00 (quoting similar opinions by the Attorney General and the courts), “VSBA is comprised of school board members who voluntarily join the organization and convene to discuss and learn about current issues common to school administrators. VSBA does not act as an advisory or policy-setting body to individual school boards.”
I went to the VHSL Web site to look up more information on the group to see if they were a voluntary organization and to see how they were funded. Here are two Q&As i found:
Q. What is the VHSL?
A. The VHSL is a non-profit, voluntary organization composed of the 290 public high schools in the Commonwealth of Virginia. The League is a service organization whose purpose is to build better citizens through interscholastic activities such as athletics, drama, debate, forensics, cheerleading, creative writing and publications for students throughout Virginia. More than 150,000 boys and girls participate in League programs each year.
Q. How is the VHSL financed?
A. Nearly half of the League’s annual revenue is derived from a share of the gate receipts from state playoff games. Additional income accrues from annual membership fees paid by each member school, registration fees from officials, corporate sponsorships, and miscellaneous activity-related fees.
It does appear that VHSL is like the School Board Assciation, the Municipal League, etc., and not subject to FOIA. Consequently, their investigations would not be available under FOIA, either.
Q: A chat room will be used by county officals for decision-making purposes in the event of an emergency situation. Is the information that is discussed in the chat room subject to FOIA?
A: Your question is another indication that the law cannot keep up with technology!
First of all, school boards and other local-government units are not permitted to meet electronically. Reading between the lines in the state Supreme Court’s ruling in a Fredericksburg e-mail case, the court probably would declare a chat-room discussion (with a rapid-fire exchange of instant messaging) to be an illegal electronic meeting. Even a rapid-fire exchange of traditional e-mails among three or more School Board members probably would also be declared an illegal electronic meeting, emergency or not. But as with all court decisions, this prediction is highly speculative!
You might not find this anywhere in the state code or in any court opinion or FOI Advisory Council opinion, but in a true emergency (the Pentagon attack and Katrina come immediately to mind), I am sure common sense would still prevail (especially if a good-faith effort has been made to provide public notice of the emergency discussion, even with short notice). There might also be emergency powers of a governor or other officials that would cover some of these scenarios.
All of that said, if the chat-room meeting involved only staff discussions, even with two school board members present, that would not constitute a FOIA-defined meeting in my judgment.