Win some, lose some
Two FOIA Council subcommittees met yesterday. VCOG was satisfied with some results, alarmed at others.
Let’s start with the alarm, which is that the subcommittee recommended sending an as-yet undrafted proposal to include a definition in FOIA of the term “personal information.”
It popped up back in June 2025 when (according to the agenda for the records subcommittee:
The Council observed that HB 1590 (having to do with names of minors in government-sponsored internships) and several existing records exemptions use the phrase ‘personal information.’” Some of the exemptions cross-reference the definition of ‘personal information’ in the Government Data Collection and Dissemination Practices Act … while others do not have any cross-reference, which could lead to differing interpretations of the same phrase. Therefore, the Council directed the Subcommittee to study options for drafting a general definition of ‘personal information’ to be added to FOIA.
Staff came back to the following meeting with some foundational research, collecting the uses of the term throughout FOIA and laying out the differences between FOIA and the GDCDPA. That research was bolstered in September 2025 by definitions used by a handful of states. A 50-state chart followed in July 2026, which was re-presented in September. Yesterday, the subcommittee looked at a 5-state comparison and “reached consensus” (I hate that term) that they liked Maryland’s way of defining personal information data to include:
Name, address, email, ID numbers, medical/disability information, photo/image, SSN, telephone number
Yes, names. Does that mean government employee names? Does that mean the names of developers, lobbyists or advocates who are trying to influence government actions? Does that mean the names of people the government is contracting with? Because I’ve seen all of these attempted redactions in the past. Any definition that would exclude names would only sanction these kinds of currently unsupported redactions.
And yet, at no time has there been a substantive discussion about the implications of adopting a definition generally or any one specifically.
This is a big deal. Once defined, certain information previously available in various contexts will be removed from the public. That deserves an actual conversation. Yes, there was opportunity for public comment, but this isn’t the kind of issue you can just legislate on the fly. Each part of any definition should be examined.
Nonetheless, the subcommittee split 3-2 to direct staff to draft a proposal for the full council to consider at its Nov. 19 meeting. We will oppose any drafting, not because defining what is personal information isn’t possible or even desirable. But because we need to make sure any definition doesn’t catch clearly public information and make it inaccessible.
On the other hand, we were satisfied when the meetings subcommittee tabled a proposal that would have changed the definition of “meeting” by allowing a greater number of members of a public body to talk without triggering FOIA. The law currently limits it to two people, at least when they’re discussing public business.
Part of the problem with the subcommittee’s consideration is that there were multiple proposals floating around, and one of those proposals had not been sent to the two subcommittee members who were participating remotely. One relied on the word “quorum,” while another was to change the law to allow three people to meet. A third (verbal) proposal would have allowed more people to meet, but only if the size of the board was over a certain number, like eight or nine.
We don’t like these proposed changes because they would be confusing to both the public and members of the bodies alike. We KNOW what the rule is now. But if current law changed, members of the public who see three people huddling could now be told, “nah, we’re allowed to because of our board size,” meaning citizens would have to know any given board’s size before questioning the out-of-earshot meetings of their elected and appointed officials.
I also noted in my comments that board size is not immutable. The FOIA Council, for instance, has added two members since its first iteration. Tying FOIA rules to board size and/or quorum only encourages manipulation of both.
Also in the “yay” category, the records subcommittee endorsed my proposal to require some sort of breakdown of charges when government provides a cost estimate. The subcommittee liked the term “itemized breakdown,” and that’s fine with me, so long as the general principle is upheld: requesters need an idea of how the estimated fee was arrived at so that they can modify or withdraw their request and so that — if it goes to court — a judge has something to look at when deciding if the charge represents the “actual cost” that is “reasonable.”
The full council meets Nov. 16 at 1:00. The agenda and supporting materials will be posted here: https://foiacouncil.dls.virginia.gov/meetings.htm