By unanimous voice votes, the FOI Advisory Council agreed to recommend two legislative proposals to the 2003 General Assembly. The recommendations are the result of two subcommittees created by the council at its June 12, 2002, meeting.
One subcommittee, comprised of council members John Edwards, Wat Hopkins and Roger Wiley, studied a bill introduced in 2002 by Del. Bob Purkey (R-Va. Beach) and held over by the 2002 legislature. Purkey’s bill would have allowed government officials to obtain a protective order from having to fulfil a FOIA request deemed by a court to be “unreasonable, not made in good faith, or motivated primarily by an intent to abuse, harass, or intimidate” the government.
The subcommittee met July 26 and Oct. 7, and Wiley reported to the full council Nov. 18. Representatives from VCOG, Virginia Press Association, Virginia Municipal League, Department of General Services, Virginia Association of Counties and the Department of Education attended one or both meetings, and members of Washington County government participated by phone.
Though there was no support for the original bill as written, there was general sympathy for the notion that over-aggressive records requesters can hamstring local governments with multiple, voluminous or frivolous FOIA requests. On the other hand, local authorities cannot ignore FOIA requests simply because they are busy.
Edwards, echoing an idea put forth June 12 by fellow FOIAC member Rosanna Bencoach, said that he was opposed to asking about people’s motives for making a request, but that by requiring people to be current on their bills, the locality would be assured of getting reimbursed for the actual cost it takes to fulfill the request.
The subcommittee agreed to add another subsection to §2.2-3704, which includes provisions on what fees a public body can charge for a request, to say that before processing a request for records, “a public body may require the requester to pay any amounts owed to the public body for previous requests for records that have not been paid within 30 days after billing.”
The second subcommittee consisted of Wiley and FOIAC member Nolan Yelich. Its mission was to study a conflict between FOIA and the Virginia Public Procurement Act. In an April advisory opinion to Virginia Beach City Attorney Les Lilley, the council opined that there was no exemption in FOIA for documents a public body may be using while negotiating contracts. Meanwhile, certain provisions of the VPPA protected some documents related to securing contracts for goods and services from mandatory disclosure.
The subcommittee met July 25 and Oct. 15, attended by many of the same people who attended the HB900 subcommittee meetings, plus others. There was almost immediate agreement that there should be some protection for records and discussions about a public body’s negotiating strategy when public disclosure could harm the body’s bargaining position. The devil was in the details, however, as to how to limit the exemption by time or subject matter.
The subcommittee agreed to add a new exemption to §2.2-3705: “Records relating to the negotiation and award of a specific contract where competition or bargaining is involved and where the release of such records would adversely affect the bargaining position or negotiating strategy of the public body. Such records shall not be withheld after the public body has made a decision to award or not to award the contract. In the case of procurement transactions conducted pursuant to the Virginia Public Procurement Act (§ 2.2-4300 et seq.), the provisions of this subdivision shall not apply, and any release of records relating to such transactions shall be governed by the Virginia Public Procurement Act.”
A proposed exemption for discussion of “the award of a public contract involving the expenditure of public funds, including interviews of bidders or offerors, and discussion of the terms or scope of such contract, where discussion in an open session would adversely affect the bargaining position or negotiating strategy of the public body” was added to the closed meeting exemption section, §2.2-3711.