Virginia lawmakers consider overhauled Freedom of Information Act

Tuesday, January 26, 1999

Advocates for open government expect the Virginia General Assembly this week to debate and vote on an overhauled Freedom of Information Act that would improve public access to government records and meetings.

“We found the climate right and got the General Assembly last year to grant unanimous approval for a committee to study it,” said Frosty Landon, executive director of the Virginia Coalition for Open Government. “The committee took it very seriously.”

And now on the table is a restructured FOI Act that clearly places the burden of proof on the government in cases concerning public access to meetings and records, Landon said.

“That was thought to be implicit before, but now it would be made explicit,” he said.
“There used to be a lot of wiggle room and that led to an excessive use of closed-door meetings and closed records.”

When the Virginia Legislature adopted the state's first Freedom of Information Act in 1968, it said it did so to ensure “the people of this Commonwealth ready access to records in the custody of public officials and free entry to meetings of public bodies wherein the business of the people is being conducted.”

But advocates for open government claim that during the past 31 years, the Legislature has taken giant steps to keep state and local records from the public.

Consider this: Although 911-emergency tapes are official records, an amendment to the law exempts those emergency systems operated by local law enforcement from compliance with the open-records act.

In a unanimous opinion released in January 1998, the Virginia Supreme Court said such a 911 tape would be exempt from mandatory disclosure because it was a “noncriminal incidents record necessary for the efficient operation of a law-enforcement agency.'”

The justices based their decision on an obscure exception to the state's 31-year-old FOI Act which was tacked onto the Code of Virginia long before the advent of 911. And this is not the only exception on the books; under current law, there are 97 of them.

But lawmakers who have studied the state's FOI law hope to change that as they push the rewrite through the current session. Although the latest revision still includes some 89 exceptions, FOI advocates claim it's a marked improvement over current law and a bold step toward additional changes in the future.

For example, Landon says current law allows government officials to close meetings when discussing the condition of government-owned real estate. Many local officials, he says, use this exemption to close meetings to discuss sewer plants, building contracts and other business.

The new law, Landon said, would eliminate such exemptions.

The new act, if passed, would also raise fines for chronic FOI offenders from $1,000 to $2,500.

Future measures might include the creation of an FOI office to handle access disputes. Such provisions have attracted the interest of people like former Gov. Gerald Baliles, who says every government employee dealing with records or meetings should take an FOI test.

Meanwhile, action on the new FOI act has been swift. The measure cleared the Senate General Laws Committee on Jan. 20, only a week after a special legislative subcommittee proposed it. In fact, the unanimous vote of the 15-member committee came before Senate staff could print an official copy of the 69-page bill.

Committee Chairman William Wampler, R-Bristol, urged the full Senate to consider the bill immediately, possibly as early as tomorrow. Wampler said he didn't want to risk more study and revision by sending the bill to another committee.

Meanwhile, a Virginia House subcommittee plans to debate the bill this week. Del. Chip Woodrum, the Roanoke Democrat who directed the 1998 study of the state FOI act, says he wants all FOI-related bills sent to the General Laws Subcommittee, which he chairs.

Sen. William Bolling, R-Hanover, says the FOI bill is a “consensus bill,” with nearly all of the changes the result of compromises reached during talks last year.

“The law had become so disorganized and confusing,” Bolling said.