Changes to Virginia's FOIA Law

Come July 1, a lot of new laws will go into effect, proof that the men and women we send to Richmond each year really do accomplish something.

There are some changes to the Freedom of Information Act, but luckily, as compared to some years, the changes are few and do not represent any major policy shifts.

For instance, there are only two new exemptions. There were years when there would be seven to 10 exemptions, so two is pretty good in my book.

One creates an exemption for records containing the cell phone or pager numbers issued to or used by fire and EMS departments. The rationale behind the request for the exemption -- which came from York County via Sen. John Miller (D-Newport News) -- was that personnel didn’t want to be interrupted by non-essential calls when they were trying to perform emergency duties. There is a similar exemption for law enforcement records in another part of FOIA.

The other exemption is an unfortunate addition in that it basically restates existing law, but its placement as a new exemption will, I’m afraid, confuse the issue.

Current law says that a record is not a PUBLIC record if it is not about public business. That means if a public official is communicating with a constituent about a great new barbecue sauce recipe, that’s  not a public record because barbecue sauce recipes are not public business. (Mmmm, but wouldn’t it be great if they were?)

So, if someone came in and asked Supervisor X for his email, Supervisor X would have to turn over all the public records and withhold those that were exempt. AND, he could withhold the non-public records, like barbecue sauce recipes. He could withhold the whole record -- name and address of sender -- or he could redact the non-public portion and release the rest.

The new exemption says the same thing: “Names, physical addresses, telephone numbers, and email addresses contained in correspondence between an individual and a member of the governing body, school board, or other public body of the locality in which the individual is a resident, unless the correspondence relates to the transaction of public business. However, no record that is otherwise open to inspection under this chapter shall be deemed exempt by virtue of the fact that it has been attached to or incorporated within any such correspondence.”

That’s a rather wordy way of saying: non-public records do not have to be released under FOIA.

It’s my concern that someone will think this is really some new exemption and apply it more broadly than it’s supposed to be. Because if existing law that already covered the situation wasn’t understood (thus necessitating this requested exemption), will the exemption itself be misunderstood, too? I sincerely hope not, but I’ll be keeping an eye on it.

There were a handful of other changes to existing FOIA provisions. The newly created Virginia All-Payer Claims Database was added to an exemption for certain proprietary information disclosed to the State Health Commissioner.

Likewise, certain information provided in relation to the Virginia Fraud Against Taxpayers Act was added to an existing exemption.

There are several changes to the terminology FOIA (and the rest of the Virginia Code) uses when referring to mental health and developmental services, and the governor’s omnibus bill reorganizing the executive branch of government deletes references to defunct departments or agencies.

An interesting change is reported to have had its genesis in a Fairfax County board (I don't know which one).

In the meetings section of FOIA, members of a board can go into closed session. It has long been established that the board members can ask whomever they want to come into the meeting with them. Usually that’s the locality’s attorney, manager, administrator or, say, a consultant or someone else making a presentation.

The problem Del. Dave Albo (R-Springfield) heard about was that board committees were having closed meetings and prohibiting members of the larger board from attending. It seems "The Board," with Members A through F, created a committee of Members A through C. The committee held a closed meeting that Member E wanted to attend, but A through C closed the door in his face. (I think that might be the definition of a dysfunctional board.)

A new section of FOIA now specifically states that a member of a public body is entitled to sit in on closed sessions of that body’s committees or subcommittees.

The governor’s budget bill specifically provided for access to records held by the Department of Forensic Science related to the Post Conviction DNA Testing Program. Those records have now been released and they're proving that several people serving time were wrongfully convicted.

There are several other bills that affect open government -- most are proactive disclosure of certain information, including ethics, conflicts, state government organization, data collection and more.

Whenever possible, encourage your local delegate and senator to support open government legislation and, when possible, thank them for their votes. Several legislators are members of VCOG, which shows an additional level of commitment to transparency in Virginia. We appreciate their support. And yours.

The full text of FOIA can always be found on the VCOG website. The new version will be posted July 1, with new amendments underlined and in italics. You'll also find a link on the left to past versions of FOIA.