When the 2004 General Assembly wasn’t squabbling about taxes and budgets, it inserted nine new exemptions in the Freedom of Information Act.
Seven deal with records, two with meetings, bringing the state’s total to 127.
Four other record exemptions were expanded, usually to include additional agencies.
As suggested by the FOI Advisory Council, record exemptions were placed in seven new FOIA sections, grouped by general subject area to try to make the Act more user-friendly.
For the first time, the legislature ordered state agencies to begin disclosing access rights and FOIA policies on the Internet, and to any citizen “upon request. “
FOI officers must be designated to assist record requesters; also, agencies must disclose policies dealing with records legally withheld.
All public bodies also were told to include in meeting minutes “a summary of the discussion,” as well as a record of votes taken and members absent or present. Attorney General Jerry Kilgore recommended the measure (HB 358); chief patron was Del. Terri Suit, R-Virginia Beach.
More significant were Kilgore open-government initiatives that met defeat.
As in the past, local governments axed his proposal requiring public bodies to record their closed meetings. Roger Wiley, speaking for the Virginia Municipal League, warned a House subcommittee that the proposal would penalize the 99 percent of local governments that make a good-faith effort to comply with FOIA, and would “force under ground and in the backroom more illegal activity ” by the other 1 percent.
The Times-Dispatch disagreed: “Virginia’s executive branch received a black eye regarding its dealings with floating trash heaps. The situation still smells — and will continue to until lawmakers allow (recording of closed meetings and) the sun to shine in on themselves as well as on the executive branch. “
(Illinois voted this year to require that state’s public bodies to keep either a video or audio recording of any meeting that takes place behind closed doors. The recordings are to be available only during FOI trials; judges are the only people who can review the recordings and they can redact any information covered by attorney-client privilege.)
Kilgore had more success on another front, winning passage of a bill that generally requires disclosure of settlements involving taxpayers’ money. The legislature also prohibited confidentiality clauses in the settlement of any dispute involving a pending regulatory or legislative action (HB 357).
Killed on the House floor, 60-35, was a much needed attempt by Kilgore to extend FOIA to members-elect of local and state public bodies. Yet despite obvious open-meeting abuses (most recently involving new members of the Fairfax School Board and the Loudoun County Board of Supervisors), a House majority blocked the policy change (HB 389).
As Kilgore spokesman Tim Murtaugh said, “If you’re sitting together and planning future events of that elected body, you’re doing the people’s business. “
Chief patron Scott Lingamfelter, R-Woodbridge, said these “prenuptial meetings” invite mischief and should not be secretive or occurring behind closed doors. Or, as The Washington Post observed, a new board’s proposals should be thoroughly aired and weighed, not rammed through with no public notice.
Opponents claimed a private individual becomes a public official upon the
oath of office, not before.
In March, the Virginia Supreme Court ruled against extending FOIA to members-elect
in Beck v. Shelton, the case better known for its review of e-mail discussions
among public officials.
Effective July 1, FOIA’s new discretionary exemptions include:
• Personal information involving juveniles in recreation programs (HB
168);
• Strategic plans to prevent closure of military bases (HB 1396, 2-year
sunset);
• Police officers’ cell-phone numbers (HB 538);
• Confidential records and discussions by the Commitment Review Committee
(a year earlier, the review committee had been excluded altogether from the state’s
open-government rules; that “free pass” now has been withdrawn.) (SB
354)
Other Assembly actions/inactions of interest:
• The House again refused to allow broadcasting or Web-casting of House
proceedings (allowed in at least 43 states); at the same time, House leaders
blocked limits on an opponent’s use of the Senate’s televised debates.
Columnist Denise Oppenhager wrote, “On the first day, a motion was made
to televise House meetings for the first time. The House defeated this proposal.
It is a hardship for most Virginians to go to Richmond to observe the session
and news coverage is not always complete. When election time comes around,
we get propaganda from the candidates reflecting their spin on what happened.
If only we could see, we could judge for ourselves. There are many delegates
whom, if we could see what they say, how they say it and how they treat others,
we would choose to not represent us any further.” (Gosh, might that
be the reason some delegates fear Web- and tele-casting?) (HR 3)
• Ended confidentiality of Judicial Inquiry and Review Commission findings
involving any judge up for re-election; as amended, information can be disclosed
by any Courts of Justice Committee member (or to any other legislator who has
requested such information).
• Blocked a requirement for Internet filtering software by library boards
or governing bodies that accept state funding for public libraries.
• Asked the state Supreme Court to require both attorneys, on election of
either attorney, to use e-filing in civil litigation. A statewide electronic
filing system is expected to roll out later this year.
• Carried over for a year a proposed permanent ban on posting of any document
showing personal information such as a financial account number or Social Security
number, signatures, birth date, mother’s maiden name, or name and age of
any minor child.
• Created an opt-out for home addresses from public voting records (a voter
using only a post office box now can sign a statement saying he fears for his
personal safety; as amended, the voter also would be required to provide evidence
that he or she has filed a complaint with a magistrate or law-enforcement official,
naming the person feared.) (HB 604)
• Sidetracked an effort by the Virginia State Bar to exempt its database
of licensed lawyers from FOIA disclosure rules. In the past, with the attorney
general’s blessing, VSB apparently sold the membership list only to Continuing
Legal Education providers, both commercial and non-commercial.
• Authorized treasurers to charge up to $100 a month or 25 cents per “page” for
electronic access — despite critics’ contentions that e-access cuts
the cost of government and should be free. (HB 465)
• Toughened disclosure rules for political contributions in local election
contests. (In some cases in a Fairfax County election, several individuals who
worked for a single company gave thousands of dollars in $199 increments to circumvent
the old disclosure rules.)
• Carried over for a year a proposal to allow local governments to hold
telephone- or video-conference meetings (HB 1380), an attempt to let localities
make a profit on GIS mapping (SB 182), and a suggested exemption for identifying
information of planes and their pilots (freely available on the Internet at an
FAA site! HB 487).
— Frosty Landon