Since June 2003, the Freedom of Information Advisory Council issued more than a dozen opinions, including AO-12-03, in which the Newport News city manager’s office failed to respond to any of three requests made by the Newport News Chapter of the Southern Christian Leadership Conference asking for documents related to the public comment period at city council meetings. The council stated the failure to respond in any way was a violation of FOIA, and a remedy was available under FOIA through an action for mandamus or injunction.
Another opinion, AO-22-03, discussed the public comment period rules adopted by the Alleghany County Board of Supervisors. The rules limited comments to three minutes, forbade questions to the board, and also prohibited partisan political statements, among other things. Though the council said it was not authorized to comment on the constitutionality of the rules under the First Amendment, the council did say that FOIA, which guarantees access to records and meetings, not to information, did not prohibit such rules.
The Virginia Baseball Stadium Authority is “clearly a public body for purposes of FOIA,” the council declared in AO-13-03, and must follow the act’s rules for access to records and meetings. The authority’s meetings must be open to all, the council added; there is no discretion to hold a meeting for “invited guests” only.
On the other hand, the council concluded in AO-14-03 that the Onancock Business and Civic Association was not a public body under FOIA for purposes of its involvement with the state’s Main Street program. The city council resolution creating the association did not indicate that it retained any control of the association’s participation in the program, nor was there an agency relationship between the agency and the city council. Agency documents that were shared with city council members or city employees would, however, be available under FOIA.
AO-15-03, discussed in the July 2003 NEWS, scolded Virginia Beach for sending a letter to city employees disparaging another city employee for requesting the results from a citywide employee-satisfaction survey. Meanwhile, in AO-16-03, the council determined that while portions of statutorily mandated school audits could be withheld from a citizen requester under FOIA, another specific provision of the Virginia Code required that the unedited version of the audit had to be submitted to the Virginia Center for School Safety at the Department of Criminal Justice Services.
The council found in AO-17-03 that a public body must have the authority to censure, reprimand or otherwise discipline a fellow member before it can invoke the open meetings exemption for such discussions. A body without that authority cannot invoke the exemption and must hold similar discussions in public.
The council considered two requests in July relating to George Mason University. In AO-18-03, the council told a GMU student that the school’s student senate, a public body supported by student fees, was the custodian of the records the student requested, not the university, though it would have been “desirable” for the university administration to forward the student’s request back to the senate. In AO-19-03, the council concluded that records related to the management of the GMU bookstore by Barnes & Noble Booksellers would be subject to FOIA if Barnes & Noble was acting as an agent of the university, but not if it was acting as an independent contractor. Though the council speculated that Barnes & Noble was more like the latter, the council also cautioned that the university’s arrangement should not frustrate access to information regarding a core public function of the university — namely, the textbooks selected by instructors for their classes.
In AO-20-03, the council congratulated the Page County treasurer for his action in safekeeping records while also furthering the policy of FOIA to provide ready access to public records. In April 2003, the treasurer charged the board of supervisors more than $192 to transfer e-mails responsive to the board’s request onto a disk. When a citizen asked for the same information a few days later, the treasurer loaned the citizen the computer file on a CD-ROM without charge. The council said the treasurer’s actions were okay under FOIA, despite the board’s criticism that it had been treated unfairly.
The council confirmed in AO-21-03 that circuit court clerks must provide digital databases of land conveyance documents to requesters who ask for the records in electronic format. Clerks do not have the discretion to turn over paper records if the document is in electronic format and the requester asks for that format. Further, the provision allowing clerks to charge $.50 per page for copies does not apply when the clerk is supplying electronic records. Under FOIA, clerks offices, like other public bodies, can only charge the actual cost of providing the records in a digital format.
The council found notice given by the Board of Game and Inland Fisheries of an orientation meeting was deficient because it did not give the start-time of the meeting, nor did it state whether public comment would be taken. In AO-23-03, the council also noted that FOIA only requires that an agenda, if there is one, be provided to the public at the same time it is provided to the public body; the public body does not have to honor a standing request for agenda items that do not currently exist, but that may be created later.
Finally, in AO-24-03, the council reviewed a request made by the ACLU to the Virginia Department of Corrections relating to “(1) Protocols and procedures for the execution of prisoners by lethal injection; (2) Protocols and procedures for the execution of prisoners by electrocution.” The DOC said the documents could be withheld under §2.2-3705.1(A)(69), which exempts records related to prison safety and security. Though the council said the exemption doesn’t apply to all such records, only those “where disclosure would jeopardize the security of the building or the safety of persons using the building,” the council agreed that the DOC had properly invoked the exemption. Furthermore, though the council did not have the records to review, it agreed that it was possible the entire document could be exempted, which would eliminate the need of the DOC to redact the document.