Since the January 2005 newsletter, the Freedom of Information Advisory Council has issued 12 advisory opinions. Perhaps the most significant opinion was released in February, only to be rescinded in June – the first time in its five-year history the council has rescinded an opinion. Virginia Beach police, said the council in AO-02-05, couldn’t release the name of a juvenile shot and killed by officers. The council said that §16.1-301 bars release of nearly all juvenile law-enforcement records.
The council reversed itself in AO-07-05. In rescinding AO-02-05, the council relied on §2.2-3706 of the Freedom of Information Act, which allows the release of all victims’ names, including juveniles. This subsection declares that it trumps conflicting statutory provisions; thus, the council said, it should not have turned to §16.1-301 for its earlier opinion. Instead, it should have looked only at the language of §2.2-3706, which has only one exception: individuals who fall under §19.2-11.2, which protects the privacy of sexual assault or family abuse victims.
In AO-25-04, the council responded to Lee Albright of Montebello, who had repeatedly asked the Department of Game and Inland Fisheries for the minutes of various board meetings. FOIA requires meeting minutes to be available during regular office hours. Until recently there were no requirements for the content of minutes, but as of July 2004, minutes must include details of when they are held, who attends and what is discussed. The council said that FOIA doesn’t require that minutes taken before July 2004 be amended to comply with the new law. The council suggested further that government should tell citizens when requested records don’t exist.
FOIA doesn’t require public bodies to say that a requested record doesn’t exist, though, the council informed a Doswell resident in AO-05-05 after the Department for Environmental Quality responded ambiguously to his requests. Likewise, if DEQ is not the custodian of the requested records, it doesn’t need to respond, the council wrote, but an agency can become the custodian of a record prepared by another agency if it uses that record in the transaction of public business. The council also advised that when original records are legible, agencies should make sure copies of those records are legible, too. FOIA does not, however, require a public body to create new records when the originals are lost or illegible.
In AO-06-05, a woman asked the council about the $31.06 Chesterfield County charged her for preparing a letter in response to her request for information on the Chesterfield Animal Pound. Usually, a public body does not have to alert a requester in advance of the fee it might charge for providing existing documents. On the other hand, if a public body decides on its own to create a new record in response to the request, it must consult with the requester before charging any fees.
The council issued two opinions related specifically to closed meetings. In AO-24-04, the council found that FOIA allowed the Culpeper Town Council’s to go into a closed-door meeting to decide to fire the town treasurer, but that Culpeper did not follow guidelines in doing so. Culpeper should have publicly declared the subject, purpose and specific statutory exemption that allowed the closed meeting. The motion that “issues relating to a specifically named individual” would be discussed was too vague, the council found. Still, when the Town council voted in open session the next week to terminate the treasurer, the decision took effect.
In AO-01-05, the council further clarified how to vote on an agreement reached in a closed meeting. FOIA says that no decision is effective until its substance is reasonably identified and voted on in a public meeting. The Orange County School Board voted after a closed meeting “to approve the recommendation of the School Board in Personnel Case #45-50 as recommended in Closed Session.” That description was too vague, the council said, and it did not truly indicate what the vote was: a decision not to renew the superintendent’s contract.
In two 2004 opinions, the council found that two government-related entities were not public bodies subject to FOIA. In AO-27-04, the council advised a VCU official that a citizen task force organized by Richmond’s then-Mayor-Elect Doug Wilder didn’t qualify as a public body. Though a similar task force organized after a public official assumed office would count as a public body, Wilder hadn’t yet assumed office, and so was not yet a public official.
After several changes to its corporate structure, the Newport News-area SPCA, no longer qualified as a public body, the council said in AO-28-04. Although the SPCA had once acted as animal control for various local governments, it was now a private entity that exercised no governmental authority and didn’t rely on government funds.
Just as there are meetings the public cannot attend, there are also records the public has no right to see. Generally, the council told a Richmond man in AO-03-05, letters of reference and recommendations are treated as personnel records. Public bodies can deny access to the general public, but they must disclose them to citizens who ask for records about themselves. Unlike other public bodies, however, educational agencies and institutions may withhold personnel records, even from their subject.
In AO-04-05, a Hillsville resident requested a list of Web sites and keywords blocked by his school district’s computer network firewall. This information is exempt from disclosure, the council explained, since it would describe the design and function of a security system used to control access to the computer network. The opinion suggests that schools voluntarily provide a more general description of how the firewall blocks access to some sites.
The council told an aspiring attorney in AO-26-04 that FOIA doesn’t prohibit him from getting his score and the scores of others on the Virginia bar exam, but that other statutory provisions gives the Virginia Board of Bar Examiners broad authority to decide whether or not to release any bar examination scores.
—Allen K. Robinson
Allen K. Robinson is the coalition’s 2005 Laurence E. and Catharine G. Richardson Legal Fellow. Allen, who will be a second-year law student at the University of Virginia this fall, has also interned this summer with the Thomas Jefferson Center for the Protection of Free Expression.