That the Virginia Freedom of Information Advisory Council be directed to study all exemptions contained in FOIA to determine the continued applicability or appropriateness of such exemptions and whether the Virginia Freedom of Information Act should be amended to eliminate any exemption from FOIA that the FOIA Council determines is no longer applicable or appropriate. In conducting its study, the FOIA Council shall also examine the organizational structure of FOIA and make recommendations to improve the readability and clarity of FOIA. The FOIA Council shall consider comment from citizens of the Commonwealth; representatives of state and local governmental entities; broadcast, print, and electronic media sources; open government organizations; and other interested parties. [emphases added]
The study is to take 2 years, with meetings completed by November 30, 2016, and a report to be submitted by the first day of the 2017 legislative session.
The study is a huge task. The press thus far has usually cited a figure of 172 exemptions. That figure apparently is the sum of the 127 exemptions to FOIA’s open records provisions in Va. Code §§ 2.2-3705.1 – 2.2-3705.8 and the 45 purposes for which Va. Code § 2.2-3711 allows closed meetings.
But that figure is NOT the whole story. FOIA exemptions are all over the place:
- Elsewhere in FOIA. See Va. Code § 2.2-3703 (exempting the Virginia Parole Board, juries, family assessment and planning teams, the Virginia State Crime Commission, and “records required by law to be to be maintained by the clerks of the courts of record”); Va. Code § 2.2-3706 (exempting multiple categories of records and information related to crime and law enforcement).
- Scattered throughout other laws, covering a variety of information from the sensitive to the strange. E.g., Va. Code § 2.2-3808.1 (identifying numbers and financial information, when collected for payment); Va. Code § 2.2-3815 (1st 5 digits of Social Security numbers); Va. Code § 2.2-1203 (home addresses of state employees); Va. Code § 2.2-4342 (certain procurement records); Va. Code § 10.1-104.5 (golf course nutrient management plans). (Please note that this is NOT an all-inclusive list.)
- In the state budget. § 1-11(E)(4) [Item 31] (exempting certain records of private entities – read Northrop Grumman and its subcontractors – related to VITA’s comprehensive infrastructure agreement for the operation of the Commonwealth’s information technology infrastructure); § 1-115(B)(2) [Item 405] (exempting personal and identifying information about victims, family members, and consensual partners in certificates of DNA analysis); § 1-123(B) [Item 424] (exempting the geographic/map data that licensees have obtained by contract with VGIN). (NOTE: Because there is no 2014 budget yet, we’ve used and linked to the 2013 Appropriation Act – searchable and PDF versions available.)
- And in a bad court opinion (albeit one that the General Assembly now has confirmed, by failing to adopt bills to subject the SCC to FOIA and enacting changes to the SCC records statutes instead).
Hopefully the FOIA Council will study and make recommendations regarding all statutory exemptions, but, whether by design or accident, exemptions to FOIA that are found outside FOIA may also be outside the Council’s charge.
Beyond the exemptions, the FOIA Council is directed to “examine the organizational structure of FOIA and make recommendations to improve the readability and clarity of FOIA.” That’s good – like many other Virginia statutes, FOIA would benefit from a reexamination and changes to increase readability. Indeed, there may be no statute where it’s more important to have the statute be readable by an average citizen.
But it’s not clear whether the FOIA Council will study and make recommendations on issues beyond organization and readability. Here are a couple of examples of matters that need study:
For the most part, FOIA doesn’t distinguish between electronic and paper records. That’s an appropriate starting point. But with a large and increasing portion of state records now natively electronic, there’s a need to think about the new records world we live in. That at least means updating provisions that do directly address electronic records (Va. Code § 2.2-3704(G) reeks of the 1990s) and considering how the greater volume, necessity of software, and other distinguishing characteristics of electronic records may need to be addressed.
FOIA doesn’t do enough to address the balance that’s needed on fees – although all requesters probably should not get a free ride, it also should be unacceptable for all requesters to face the likelihood that anything beyond the simplest of requests will run into a wall of hundreds or thousands of dollars in charges to be paid in advance. See Va. Code § 2.2-3704(H). The “reasonable” standard of Va. Code § 2.2-3704(F) – indulging the rather questionable assumption that reasonableness is a standard – is insufficient.
Some FOIA issues may not be susceptible to a legislative solution. Real improvement of FOIA in Virginia requires executive leadership who will promote proactive and willing openness and inculcate good practices in employees. It’s difficult to imagine how to write legislation that would cause agencies to publish more data proactively, to design records systems for easy search and retrieval, and to ensure that employees mark and organize records to allow ready retrieval and disclosure. (These aren’t merely open government wish lists — steps like that also would help the agencies by reducing their FOIA and discovery costs and by improving Public Records Act compliance.)
As the FOIA Council’s agenda reflects, this meeting is only the beginning of a two-year journey. Don’t expect substantive proposals tomorrow. But process matters, and it’s not too early to observe the Council’s actions and arrangements regarding “a study plan, an organizational time table, and … issues such as the use of subcommittees and workgroups.” Citizens interested in open government need to participate in this process, so watch as well for how the Council plans to “consider comment from citizens of the Commonwealth; representatives of state and local governmental entities; broadcast, print, and electronic media sources; open government organizations; and other interested parties.”