The 2004 General Assembly punted three bills to the FOI Advisory Council for further review. That’s exactly the kind of role the architects of the council envisioned when the body was created in 2000.
At its next regularly scheduled meeting, the council heard presentations from Executive Director Maria Everett on what the bills referred to the committee were and why they were not acted on. Over the years, bills have been referred to the council because they were politically sensitive, too complex to be worked out in a 45- or 60-day legislative session, or because their patron lost interest (or never had it to begin with).
Others may end up before the council because they’re just plain weird. For instance, HB 487 this year sought to create a FOIA exemption for the names, addresses and telephone numbers of aircraft owners or operators at regional airports, as well as the tail numbers on their aircraft. Never mind that the tail numbers are visible to anyone who sees the plane outside of the hangar. And never mind that the information is publicly available on the FAA’s Web site.
The bill was submitted by Del. Mark Cole, R-Fredericksburg, in response to an incident where a citizen sought to use airport-controlled information to make threats against the airport and some aircraft owners.
The council agreed to more fully review the bill since it involved a policy question over whether a state FOIA exemption was proper in the face of freely available information at the federal level. The council did not appoint any kind of subcommittee or workgroup, however, to conduct that review.
The council did create a subcommittee to study the thorny issue of access to geographical information systems records. SB 182, submitted by Sen. Harry Blevins, R-Chesapeake, would have created a FOIA exemption for GIS maps that are developed from a combination of high resolution technologies, including digital orthophotography, digital terrain models or related ancillary proprietary data produced by any local governing body or by the Virginia Geographic Information Network division of the Virginia Information Technologies Agency.
Critics of the bill are concerned that localities will seek to turn access to GIS data into a revenue stream, rather than maintaining, distributing and/or charging for it as the locality would for any other public record.
As GIS data is still relatively new outside some of the more technologically advanced localities, and as its impact and uses are still be explored, the council subcommittee will study the bill and surrounding issues. Council members David Anderson, Tom Moncure and Roger Wiley were appointed to the subcommittee. The first meeting was slated for June 9. (See “Update,” next page.)
The council declined to invest any more time to review HB 761, patroned by Del. Robert Hurt, R-Chatham, which would have clarified that FOIA does not apply to requests for copies of the Virginia State Bar membership lists. Despite a ruling from the council last year, the bar still maintains that the list, which is made available for vendors of continuing legal education programs, should not be made publicly available.
Though not connected with any legislation offered this session, the clerks of the House and Senate asked the council to create a subcommittee to study the application of public notice for in-person and electronic meetings of legislative committees, subcommittees and study commissions.
The clerks pointed out that prohibitions on the number of electronic meetings that can be held do not take into account state entities that meet only a few times a year. Nor do they allow flexibility for holding an electronic meeting in response to a member’s emergency.
The clerks also suggested that posting of regular meeting notices on the Internet should be mandated.
The council appointed members David Hallock, Wat Hopkins and E.M. Miller to the subcommittee, which had its first meeting May 25.
Attended by representatives from local government, the press and broadcasters associations, the coalition, VDOT and the Department of Education, the subcommittee was sympathetic to the possible overly restrictive notice rules for electronic meetings. Some, however, felt the problems were actually only inconveniences, not impediments.
The subcommittee was reminded that the public’s right to attend an electronic meeting must be considered in any “fix” of the current rules. And it was also suggested that revisions be made in conjunction with the likely move from temporary to permanent of the videoconferencing pilot project next year.
The subcommittee was less sympathetic to the clerks’ complaints about the notice for regular meetings. Many counties are still not relying on the Internet for public communication. And substituting Internet posting for physical posting in a public place or at the clerk’s office will result in fewer opportunities for non-tech-savvy citizens to learn of upcoming meetings.
The council’s associate director, Lisa Wallmeyer, will circulate draft language on the electronic notice provisions.
Finally, the council formed a task force to review the issue of obsolete “technology” nomenclature in FOIA and to make recommendations for change to the council as a whole. Council staff will serve as facilitators, and participation in the task force is open to everyone.
Update
The GIS subcommittee, made up of David Anderson, Tom Moncure and Roger WIley, formed in response to SB 182, met for the first time June 9, though Anderson was not present.
In addition to the coalition, representatives from the City of Virginia Beach, Henrico County, the Virginia Press Association, the Virginia Geographic Information Network, VIPNet, the Virginia Department of Transportation, the Virginia Association of Counties and others attended.
The committee broke the issue down into two major components: (1) the security and safety concerns of releasing the information, as well as the reluctance of some third parties, namely utilities, to share information with GIS providers without assurances that the information will be guarded; and (2) the appropriate fees to be charged for access to GIS data (not the GIS maps themselves, or even the raw data, but the integration of that data into the mapping system).
The committee agreed that existing FOIA exemptions (such as #57, for example) may be able to be tweaked to address the concerns raised by the first issue.
On the second issue, local governments, who are not required to develop GIS projects, say they are investing millions of dollars, and that commercial vendors are coming in, getting the data, repackaging it and then reselling it for a profit. They are seeking a mechanism, perhaps through licensing schedules, copyright enforcement or something else, to stanch the loss of taxpayer dollars.
Some, such as Moncure, wondered at why we should discourage the free market system — that if commercial entities are willing to pay for the data, and end-users are willing to pay what the entities are charging, why should the government get involved with the transaction.
The coalition reiterated its basic argument that setting up different fee and/or licensing schemes for commercial customers starts us down a slippery slope of inquiring into a records requester’s reason for wanting government information.
Wiley was concerned that localities are being hamstrung in a way that state entities are not: a specific provision in the 2003 budget bill allows VGIN to set up a licensing scheme for the state’s GIS data.
The committee is scheduled to meet again July 13, at 11 a.m., and again on Sept. 16, at 10 a.m. Both meetings will be at the General Assembly Building.