The SCC and FOIA, part 3: FOIA Council workgroup recap

Yesterday afternoon a workgroup of the FOIA Council met to discuss the State Corporation Commission and the Virginia Freedom of Information Act (FOIA).  FOIA Council Executive Director Maria Everett noted that the workgroup was seeking agreement.  By the end of the meeting, it was clear that wasn’t going to happen.

A clash of worldviews

Attendees of the meeting heard four fundamentally different perspectives:

Del. Scott Surovell (bio / Twitter) – Del. Surovell has led the fight to bring the SCC within FOIA’s reach (countering the judicial disaster that was Christian v. SCC and seeking to let sunlight counter any future procurement misadventures).  Surovell and others (such as the Virginia Coalition for Open Government) take the sensible position that FOIA should apply to a governmental agency that’s as important as the SCC and that any legitimate confidentiality concerns can be dealt with through appropriate FOIA exemptions.

David Ogburn (Verizon) – Mr. Ogburn was the only talkative industry representative present at this meeting.  (See our earlier post for an article that recounts industry views expressed at previous FOIA Council meetings.)  If you’re thinking that Verizon – a company that hasn’t challenged a single federal government demand for access to customer data and views seeking even minimal transparency about such requests as “grandstanding” – isn’t likely to be public access friendly at the state level, you’re right.  As proponents of secrecy usually do, Ogburn emphasized the risks of openness, repeatedly warning that bringing the SCC under FOIA could cause significant, irreversible harm in the form of threats to infrastructure.  (If you’re thinking that FOIA has security exemptions already, you’re right again, but Ogburn & Verizon would like you to know that the those exemptions’ requirements make them less “useful”.)  As a way to ensure that no potentially harmful exposures of information are missed, Ogburn opposed applying the basic orientation of FOIA (the presumption of openness) to the SCC; instead, he advocated making records closed and then setting forth only specific, open categories of records.  He also noted that not all companies that submit information to the SCC are “public utilities” under Virginia law.

Arlen Bolstad (SCC) – Mr. Bolstad, a senior attorney at the SCC, was at the meeting to advance two positions.  First, that the SCC really is an open & transparent agency, although it was not at all clear whether the SCC’s current public records and meeting access are mandated or simply discretionary.  Second, that the SCC wants to codify its current information access practices in the part of the Virginia Code that deals with the SCC (Title 12.1), not through FOIA.  In addition to avoiding FOIA’s presumptions of openness and principles of construction, such a choice of locations would avoid the FOIA Council issuing opinions related to the SCC, something Bolstad clearly wanted to avoid even though such opinions are non-binding.  Bolstad said that the SCC is working on its own bill, although he had neither the text of such a bill nor a timeframe for when specific language would be available for public review and discussion.

Virginia Press Association – This media group staked out an interesting position that provides somewhat surprising support to the SCC and may be an unexpected hurdle for Surovell and open government advocates.  The VPA’s Executive Director, Ginger Stanley, noted the difficulty of fitting the SCC within FOIA and (after the SCC revealed its plans for a bill) acknowledged that the VPA was working with the SCC on that bill.  The VPA did oppose granting the SCC a wholesale exemption from the public meetings provisions of FOIA, however, preferring to make the SCC subject to the meetings provisions and codify an exemption for certain SCC meetings.

Bridging the gaps between these positions seems unlikely, and the 2014 Session of the General Assembly is right around the corner.  Look for dueling bills to emerge and the matter to be settled by the vote of one or more GA committees.

Also present but taking no clear positions during the meeting were FOIA Council member George Whitehurst and Del. Kaye Kory.

Current draft bills

The workgroup had before it two draft bills that seemed to be the ongoing work of Del. Surovell and FOIA Council staff.

Both would amend Va. Code § 2.2-3701 to specify that the SCC is a “public body” for purposes of FOIA but also exempt the SCC from FOIA’s meetings provisions.

Both would amend Va. Code § 2.2-3713 to specify that SCC FOIA appeals can be made to the Supreme Court of Virginia, as provided in Article IX, Section 3 of the Constitution of Virginia.

The key difference between the two drafts was what they would exclude from FOIA:

One draft would add a SCC exemption to Va. Code § 2.2-3705.6 to protect confidential & proprietary business records provided to the SCC, including trade secrets and non-public financial information.  Like Va. Code § 2.2-4342(F) and other subsections of § 2.2-3705.6, it would provide that vendors must request confidentiality before or at the time the records were submitted, specifically identify the materials to be confidential, and provide reasons why “protection” from public access is necessary.

The other draft would add a much broader SCC exemption to Va. Code § 2.2-3705.7, carving out all records related to the exercise of the SCC’s powers, duties, and jurisdiction under the Constitution and various titles of the Code providing for SCC control, licensing, and/or regulation (Titles 6.2, 13.1, 38.2, and 56).  It would require no contemporaneous request by a private business, nor any justification for the confidentiality.

As the brief descriptions above outline, there are significant substantive and procedural differences between the two drafts.

In light of Verizon’s concerns, Surovell and FOIA Council staff seem to intend to tweak the exemptions in one or both drafts, with a further draft to be publicized on the FOIA Council website for further public comment.  It seems likely that further tweaking will occur before and during the upcoming General Assembly session – and indeed, perhaps in future years as well once people see how changes to the law work in practice.

Conclusion

Del. Surovell and open government advocates face a tough road, including a crafty agency opponent and industry that enjoys casual interaction with government and takes a dim view of public access to information.  Some legislative change or clarification is likely, but exactly what that change will do is very much up in the air.

 

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