The FOIA Council met May to review the work of the two committees studying FOIA’s records and meetings exemptions. They also made decisions on what to do with legislation referred to the council by the 2015 General Assembly, and they heard an update on an emerging trend of government treating access to databases differently from the way all other records are treated.
The records exemption committee met May 11, but not for long. After just 45 minutes, the committee decided to defer further discussion of a possible global exemption for trade secrets and proprietary records to an informal work group. VCOG’s Megan Rhyne observed that FOIA policy in the past favored narrowly drawn exemptions over broadly written ones, though she also noted the need for a consistent definition of what is material can or should be protected. Craig Merritt, an attorney representing the Virginia Press Association, noted that there is a different between an ownership interest in information, which doesn’t need as much protection, versus a confidence interest in information, which does.
The meetings exemption committee met May 12. Several exemptions were discussed, but the longest conversation covered the personnel exemption. Daily Press reporter Dave Ress made the argument that performance reviews of employees at the highest level of an agency (for example, school superintendents and city managers) should be open. Local government attorney Roger Wiley said such a rule would water down the review since no one wants to be critical of others in public, while Fredericksburg City Attorney Kathleen Dooley, who chairs the subcommittee, expressed concern over possible defamation suits arising from comments made in public session.
Of the bills referred to the council by the legislature, the full council sent seven to the records and meetings subcommittees at its May 20 meeting but decided to take no action on the eighth. The council decided against studying further a proposal by Del. Rick Morris to make willful violations of FOIA a misdemeanor. Local government and commonwealth attorney representatives said the penalty could be used for political purposes, and Sen. Richard Stuart, who chairs the council, said the proposal seemed “to be the wrong track to take.”
On the other hand, the council sent Del. Brenda Pogge’s bill, which would allow a court to invalidate an action taken at a meeting where notice was not given to individuals who signed up to receive notice, to the meetings subcommittee.
A bill proposed by Sen. John Cosgrove that would allow for confidential discussions about “criminal street gang related activities” was also sent to the meetings subcommittee.
A bill from Sen. Emmett Hanger to make utilities subject to FOIA when exercising eminent domain powers was sent to the records subcommittee. An identical bill from Del. Dickie Bell was killed during the session. VCOG’s Rhyne pointed out that the legislature grants the power of eminent domain to private companies and can thus tailor its use and application.
Identical bills from Sen. Chap Petersen and Del. David Ramadan that propose to remove the working papers exemption for university presidents was also sent to the records committee, as were two bills directing the council to study how the FOIA exemptions that applied to the Alcoholic Beverage Commission should be applied to the new ABC Authority.
Maria Everett, the council’s director, updated the council on the Office of Executive’s position on not releasing a database of court information. She said she has seen more and more instances of governments refusing to turn over databases on the mistaken belief that they are not public records. Sen. Richard Stuart said he expected legislation emanating from the OES situation would be proposed in 2016. Pressed on what he meant, Stuart backtracked a bit and said, “I am speculating.”