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Transparency Prevails in 2010 Legislative Session

May 14, 2010

This year’s General Assembly session was a good one for transparency-related bills in Virginia. Most of the bills that were considered detrimental to those who work for open government were defeated or amended, while most bills to expand FOIA made it through both the House and Senate.

Many anti-access or anti-transparency bills were either amended to offset a particular objection or sent to another the Virginia FOIA Council for further study. Other bills were passed over for next year’s session, and some bills were killed outright, either in subcommittee or full committee.

It was not for lack of trying that some access-friendly bills failed to see the light of day–thanks to the hard work of many lawmakers, lots of transparency bills got through. 

These links provide just a few examples of FOIA- and access-related bills introduced for the 2010 legislative session.

Bills that passed

Bills sent to the Virginia FOIA Council

Bills that failed

Source: Virginia Coalition for Open Government

Bills that passed

House Bill 1028: Delegate Albert Pollard (D-Richmond) – Prohibits any public body from conducting a meeting in a location that prohibits recording devices.

When Westmoreland County held its public meetings in a courtroom, the local judge refused to let cameras in, despite the fact that FOIA says all public meetings can be recorded. The Virginia Coalition for Open Government contacted Pollard about the problem. Though he did not directly intervene (Sen. Richard Stuart, R-Montross, did), Pollard followed through with his promise to introduce legislation to specifically state that meetings cannot be held in places where recording is prohibited. That measure passed without opposition.

HB 518: Delegate Tom Rust (R-Herndon) – Clarifies the responsibilities of any agency that transfers its records to a government entity (such as Virginia Information Technologies Agency or the Library of Virginia) for storage. The bill also clarifies the definition of “criminal incident information.”

Now FOIA will specify that when an agency transfers its records to the Library of Virginia or to another public entity for storage, those records remain in the control of the transferring agency. That is, the agency cannot respond to a FOIA request for those records by saying it does not possess them. Similarly, public entities will not have to answer FOI requests for agency records of which they have no prior knowledge. The VCOG identified the motivation behind this particular bill provision and why it needed to be amended, and the Virginia Press Association assisted with a solution to address the provision in the bill.

The VPA also worked with Virginia State Police to amend the definition of criminal incident information contained in HB 518. The collaboration will hopefully pave the way for a uniform definition system and application of the definition by the state’s police departments.

Bills sent to the Virginia FOIA Council

The Virginia FOIA Council is a state agency that helps citizens and government officials resolve disputes over Freedom of Information issues. The FOIA Council answers questions from private citizens, state and local public officials, and the media about access to public records and meetings.

House Bill 449: Delegate Lee Ware (R-Powhatan) – Provides that any public body may petition a court for injunctive relief to restrain a requester from harassment or other abuse of the rights or privileges granted under FOIA.

HB449 was a top concern for those who fight for open government. Proposed by Ware, it would have allowed the government to get an injunction against a citizen it felt was “harassing” the government with FOIA.

The FOIA subcommittee of the House General Laws Committee sent the bill to the FOIA Council for further study of what can – or should – be done about people who use FOIA to purposely pile onto a public body’s workload.

HB 641: Delegate Ward Armstrong (D-Martinsville) – Provides that FOIA requests may be made by any citizen of the United States and not just citizens of the commonwealth.

HB 641 proposes following other states and opening up Virginia’s FOIA to all U.S. citizens. Virginia’s law is currently limited to use by only Virginia citizens and newspapers/broadcasters operating in the state.

Those who work toward open government and pro-access legislation originally supported the bill, brought by Armstrong. However, in the House FOIA subcommittee, the bill was weighted down with problematic amendments: One would require out-of-state FOIA requesters to pay more, or pay up-front, for requests (a scenario that may pose problems under the Privileges & Immunities Clause of the U.S. Constitution); and another would bar users from other states with restricted FOIA laws (Arkansas, Georgia, New Hampshire, New Jersey and Tennessee) from using Virginia’s FOIA.

Bills that failed

Several of the pro-access bills that were defeated this session had a common characteristic: They involved the proactive creation of Internet-based services for use by the public.

House Bill 478: Delegate Charles Carrico (R-Galax) – Would have required localities to establish an Internet-accessible database of citizen-reported issues and requests for information and the governmental responses to these inquiries.

HB 778: Delegate James LeMunyon (R-Chantilly) – Would have directed Legislative Information Systems on the Virginia General Assembly website to make it possible for Internet users to search an individual lawmaker’s voting history.

HB 328: Delegate Ken Plum (R-Reston) – Would have required House and Senate clerks to establish a searchable electronic database containing the information from the disclosure of personal interests statements filed by legislators, legislators-elect and candidates for the General Assembly.

Senate Bill 118: Sen. Chapman Petersen (R-Fairfax) – Would have required disclosure forms of the General Assembly members to be posted on the various clerks’ websites for the five years that they are maintained as public records.

SB 581: Dave Marsden (D-Fairfax) – This bill would have required the Supreme Court to direct the creation of a Commonwealth Law Library and make it accessible online.

— Catherine MacDonald and Sarah Sonies

Index to User-Friendly Guide to FOIA