FOI Advisory Council opinions & updates
Relying on an Attorney General opinion that said circuit courts are subject to FOIA, the FOI Advisory Council’s first opinion of 2009 (AO-01-09) concluded that the Office of the Executive Secretary of the Supreme Court of Virginia (OES) is subject to FOIA, too. As an entity that is wholly or principally funded by public funds, OES’ administrative records are subject to FOIA, and records on the salary, position and job classification information for various OES employees should have been released.
In AO-02-09, the council distinguished matriculated students from applicants who have not yet begun their studies. Virginia Tech’s student newspaper, The Collegiate Times, submitted two requests for the directory information of incoming transfer students for the spring 2009 semester. Tech denied the first request, submitted before the accepted students began their studies, without citing a specific law but mentioning Virginia FOIA. The second request, sent after the students enrolled in classes, was denied based on the scholastic records exemption. The council found that the first denial did not follow FOIA because there is no specific provision in the Virginia Code exempting directory information of prospective or accepted applicants. The council did find, however, that once applicants matriculated and officially became students, their directory information could be withheld as scholastic records.
The council determined in AO-03-09 that a task force created to study the Rivanna River is a public body subject to FOIA. Even if a task force does not receive direct public funds, it can still be subject to FOIA because it was created to advise the public bodies themselves. The council also found that overlap can exist between a public body and a newly created task force. While this overlap is not created simply by the presence of one member on both the existing public body and the task force, it can occur in other situations. Here, when a quorum of the Rivanna River Basin Commission convened with the task force to discuss an issue that pertained to both entities, both public bodies should be held responsible for their FOIA obligations during this meeting.
AO-04-09 addressed closed meetings between Alleghany County and the City of Covington to discuss the possible consolidation of their services. Section 15.2-2907 of the Virginia Code allows closed-door meetings on topics that could be reviewed by the Commission on Local Government. The council said that because consolidation appeared to be a topic that would be reviewed by the commission, then the closed meetings did not violate FOIA.
The council issued AO-05-09 opining that boards of equalization are subject to FOIA because they are political subdivisions supported wholly or principally by public funds, and all of FOIA’s requirements for holding public meetings must be followed.
In response to a challenge concerning FOIA fees, the council reiterated in AO-06-09 that a public body can charge a reasonable fee, reflective of the actual cost for accessing, duplicating and supplying records under FOIA. The government cannot, however, charge fees for unrequested services, such as certified mail, without an agreement with the requester. The council also noted that even though public bodies are required to make records available for copying, they are not responsible for advising requesters of all of their FOIA rights upon receiving a request.
In AO-08-09, the council addressed another issue raised by the same set of facts as AO-06-09. The council determined that public records on the Internet are no different from public records locked in a file cabinet. The requester argued that when the Frontier Culture Museum of Virginia provided him with Web site addresses in response to a budget-related FOIA request, the museum was merely going about its general business and should not charge FOIA fees. Even though the council encourages public bodies to post records online, the council said that the records are still subject to FOIA requests and any reasonable fees associated with responding to those requests. The council noted, however, that fees associated with copying and pasting URLs and text from a Web site should be nominal, and thus should either be waived or charged according to minimal effort and staff time used to respond to the FOIA request.
AO-07-09 addressed the rescheduling of a meeting for a Department of Social Services Administrative Board. Here, the council found that an administrator’s calls to individual board members did violate FOIA, which does not require that a rescheduling decision be made publicly. Furthermore, the phone calls themselves do not violate FOIA because there was no quorum for any individual call.
The council’s Personal Identifying Information (PII) and Public Records (PR) subcommittees met one time each over the summer and will continue their work into the fall. Most of the bills referred to the PII subcommittee are still on the table there, while in the PR subcommittee, Del. Joe May, R-Leesburg, agreed to withdraw his bill changing the definition of “public records” on the condition that the council look into possible legislative fixes to prevent disclosure of personal correspondence.
by Gardner Rordam