Freedom of Information Act Omnibus Bills and other FOIA Legislation

January 17, 2017

The Virginia Freedom of Information Advisory Council completed its three-year study of the Virginia Freedom of Information Act (FOIA). During the study, every record and open meeting exemption of the act was examined and vetted, resulting in two Omnibus bills submitted by FOIA Council Chair Delegate James LeMunyon. The changes are numerous but the ones of greatest impact to local governments found in HB 1539 (LeMunyon) for records and HB 1540 (LeMunyon) for meetings are summarized below.

HB 1539, the Records Omnibus bill,

  • Eliminates the “correspondence” exemption for a number of officials including the mayor or chief executive officer of any political subdivision of the Commonwealth
  • Adds the requirement that information publicly available or not otherwise subject to an exclusion under FOIA or other provision of law that has been aggregated, combined, or changed in format without substantive analysis or revision shall not be deemed “working papers.”
  • Requires school boards to post a FOIA Rights and Responsibilities document on their websites to assist citizens in obtaining records
  • Redefines “regional public body”
  • Adds the requirement that notices of meetings be posted on government websites
  • Adds the requirement that notices of continued meetings be given, regardless of whether the meeting is held by traditional or electronic communication means
  • Adds the requirement that a proposed agenda must be included with agenda packets available to the public.

HB1540, the meetings bill,

  • Allows closed meetings for discussion by a local finance board or board of trustees of a trust established by one or more local public bodies to invest funds for postemployment benefits other than pensions
  • Limits remote participation by a member of a public body due to a personal matter to two meetings per year.

The Council also recommended several clarifying amendments to FOIA. These clarifying amendments include:

  • To the extent that any correspondence meets the definition of a “working paper” for the public officials identified above, it may be withheld from the mandatory disclosure provisions of FOIA
  • Revises the definition of “public record”
  • Clarifies citizen rights to inspect or receive copies of public records)
  • Creates uniform reference to government websites (official public government website)
  • Merges general provisions relating to personnel records into one section
  • Clarifies that the name of a public employee is subject to mandatory disclosure in the context of requests for position and salary information
  • Creates a definition of “personal contact information”
  • Consolidates public safety exemptions relating to security of buildings, people in buildings, critical infrastructure, cybersecurity, and the Statewide Agencies Radio System
  • Updates terminology for “telecommunications provider” to “communications services provider”
  • Separates the closed meeting exemption for legal matters and litigation into two distinct exemptions
  • Clarifies the purposes for which closed meetings may be held in an effort to better distinguish the “subject” of a closed meeting from its “purpose.”

In addition, several other FOIA bills effecting local government have been introduced. VACo opposes HB 1701 (Yancey), which adds another press representative to the FOIA council without examining the entire appointment process and the membership of the council. VACo is also concerned about HB 2143 (LeMunyon) that provides for third party training for FOIA officers. VACo opposes SB 1103 (Surovell) that provides an additional penalty to every member of a public body if a court finds that any member violated the certification related to a closed meeting. VACo opposes SB 1128 (DeSteph), which creates a rebuttable presumption that a failure to respond to records was willful and knowing. VACo also opposes SB 1292 (Chafin) and HB 1678 (Robinson), which seek to exempt chemicals used in the fracking process from mandatory disclosure under a trade secrets provision.

VACo Members – Share your thoughts on FlagPoll.

VACo Contact: Phyllis Errico, CAE

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