Virginia Freedom of Information Act

1. Virginia Freedom of Information Act A summary of Selected FOIA Provisions for the Substance Abuse Services Council July 5, 2012 Karen A. DeSousa, OAG

2. FOIA POLICY CONSIDERATIONS • Ensure Virginia’s citizens ready access to records in the custody of public officials. • Ensure free entry to meetings of public bodies wherein business of the people is being conducted. “The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government.” Va. Code § 2.2-3700

3. Definitions - FOIA “Public Body” means any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth . . . and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds. It shall include any committee, subcommittee, or other entity however designated, of the public body created to perform delegated functions of the public body or to advise the public body. It shall not exclude any such committee, subcommittee or entity because it has private sector or citizen members. Va. Code § 2.2-3701

4. WHY DO YOU NEED TO KNOW ABOUT FOIA? • Any person elected, reelected, appointed or reappointed to any body not excepted from this chapter shall (i) be furnished by the public body's administrator or legal counsel with a copy of this chapter within two weeks following election, reelection, appointment or reappointment and (ii) read and become familiar with the provisions of this chapter. Va. Code § 2.2-3702

5. What is covered by FOIA? • FOIA covers 2 general areas: • Meetings • Records

6. WHAT IS A MEETING?

7. Definition of “Meeting” • Meetings include work sessions • In person or through telephonic or video equipment • Requires three members or (ii) a quorum, if less than three • Va. Code § 2.2-3701

8. What if you go to a social function or other gathering and there are two (or more) members of the SASC there?

9. Not prohibited if: • No part the purpose of such gathering is the discussion or transaction of any public business • Not called or prearranged with any purpose of discussing or transacting any business of the committee

10. WHAT ARE FOIA MEETING REQUIREMENTS? • All meetings are open to the public, unless subject to a specific provision for a closed meeting • Public includes the media • Any person may photograph, film, record or otherwise reproduce any portion of a meeting required to be open.

11. MEETING REQUIREMENTS cont. • No public body shall conduct a meeting required to be open in any building/facility where recording devices are prohibited (2010) • A Board may not vote by secret or written ballot • A board may not vote by telephone or other electronic means without specific statutory authority

12. DO YOU HAVE TO TELL ANYONE THAT YOU ARE HAVING A PUBLIC MEETING?

13. FOIA NOTICE REQUIREMENTS • Notice of the date, time, and location of meetings is required • The notice shall be posted at least three working days prior to the meeting, incl. posting on the Department’s website and the VITA Commonwealth Calendar • Exception for special or emergency meetings

14. Notice, con’t. Any person may annually file a written request for notification with a public body. The public body shall provide notice of all meetings directly to each person. Va. Code § 2.2-3707

15. Agenda Packets At least one copy of all agenda packets and, unless exempt, all materials furnished to members of a public body for a meeting shall be made available for public inspection at the same time such documents are furnished to the members of the public body. Va. Code § 2.2-3707(F) Must also be forwarded to all locations with remote public access

16. WHAT KIND OF RECORD IS MADE OF THE MEETING? • Written minutes are required, which include: • (i) the date, time and location of the meeting • (ii) Board members recorded as present and absent • (iii) a summary of the discussion on matters proposed, deliberated or decided, and a record of any votes taken. • Not verbatim recordation

17. Minutes, con’t. • Minutes, including draft minutes, and all other records of open meetings, including audio/visual records, are deemed to be public records and are subject to FOIA • In other words, if you make a tape of a meeting, it, too, is deemed a public record and is subject to disclosure

18. Posting of Minutes • All boards, commissions, councils, and other public bodies created in the executive branch and subject to FOIA must post minutes of their meetings on the body’s website, if any, and on VITA’s Community Calendar • Draft minutes posted “ASAP” but no later than 10 working days after meeting • Final approved minutes posted within 3 working days of final approval

19. WHY DOESN’T THE SASC MEET BY TELEPHONE?

20. Electronic Meetings • FOIA does provide for telephonic/video meetings of state public bodies, but requires, among other things, 3 working days notice and public access/participation at all locations of the meeting. • If you meet electronically, must make a written report to the FOIA Advisory Council and Joint Comm’n on Technology and Science each year.

21. Electronic Meetings, con’t. • If a quorum of the Committee is physically present at one primary or central meeting location, additional members may participate by telephone, provided that remote locations where additional members of the body participate through electronic means are also open to the publicand the public has the opportunity to participate

22. Electronic Meetings, con’t. • Any interruption in the telephonic or video broadcast of the meeting shall result in the suspension of any action at the meeting until repairs are made and public access is restored • Votes taken during a meeting conducted electronically must be recorded by name in roll-call fashion and recorded as such in the minutes

23. Participation by Members in the Event of an Emergency, Illness, or Distance… Va. Code 2.2-3708.1

24. A member may participate from a remote location that’s NOT open to the public: • 1. If, on the day of a meeting, a member of the public body holding the meeting notifies the chair of the public body that such member is unable to attend the meeting due to an EMERGENCY and identifies with specificity the nature of the emergency, and the public body holding the meeting (a) approves such member's participation by a majority vote of the members present and (b) records in its minutes the specific nature of the emergency and the remote location from which the member participated. • Such participation by the member shall be limited each calendar year to two meetings or 25 percent of the meetings of the public body, whichever is fewer;

25. Sick?? • 2. If a member of a public body notifies the chair of the public body that such member is unable to attend a meeting due to a temporary or permanent disability or other medical condition that prevents the member's physical attendance and the public body records this fact and the remote location from which the member participated in its minutes; or

26. Too far away?? • 3. If, on the day of a meeting, a member of a regional public body notifies the chair of the public body that such member's principal residence is more than 60 MILES from the meeting location identified in the required notice for such meeting and the public body holding the meeting (a) approves such member's participation by a majority vote of the members present and (b) records in its minutes the remote location from which the member participated.

27. In addition to the above: 1. A quorum of the public body must be physically assembled at the primary or central meeting location; and 2. The public body must make arrangements for the voice of the remote participant to be heard by all persons at the primary or central meeting location.

28. Electronic Meetings, con’t. • Even if electronic meetings are sometimes utilized, the Council must hold at least one meeting per year where all members are physically assembled at one location

29. Minutes for Electronic Meetings For electronic communication meetings conducted in accordance with § 2.2-3708, minutes of state public bodies shall include • (a) the identity of the members of the public body at each remote location identified in the notice who participated in the meeting through electronic communications means, • (b) the identity of the members of the public body who were physically assembled at the primary or central meeting location, and • (c) the identity of the members of the public body who were not present at the locations identified in clauses (a) and (b), but who monitored such meeting through electronic communications means.

30. WHEN MAY THE SASC MEET IN CLOSED SESSION?

31. Reasons for Closed Meetings • Consultation with legal counsel and briefings by staff pertaining to actual or probable litigation • Discussion/consideration of medical records, where the records themselves are subject to a FOIA exclusion • Protection of the privacy of individuals in personal matters not related to public business • Discussion, consideration or interviews of prospective candidates for appointment • Other purposes stated in FOIA (2.2-3711)

32. HOW DOES THE COUNCIL CONVENE A CLOSED MEETING? • By affirmative vote in open meeting approving a motion that: • (i) identifies the subject matter • (ii) states the purpose of the meeting and • (iii) makes specific reference to the applicable exemption from open meeting requirements provided by statute

33. During Closed Meeting • Discussion is restricted to the matters contained in motion • A committee may not take action (vote) in closed meeting • Minutes are not required

34. Conclusion of the closed meeting • At the conclusion of the closed meeting, the council shall immediately reconvene in open meeting and certify that it • “heard, discussed or considered only public business matters lawfully exempted from open meeting requirements under the Virginia Freedom of Information Act and only such public business matters as were identified in the motion by which the closed meeting was convened.”

35. WHAT RECORDS ARE CONSIDERED “PUBLIC”? • "Public records" means all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business

36. PUBLIC RECORDS cont. • All public records are open to inspection unless specifically exempted by law. • Many exemptions may apply to the Council’s records, including one for health records

37. FOIA record exemptions include: • Reports and court documents relating to involuntary admission pursuant to 37.2-818 • Written advice of legal counsel & other records protected by attorney-client privilege • Records recorded or compiled exclusively for use in closed meetings

38. FOIA record exemptions include: • Health records, except that such records may be personally reviewed by the individual who is the subject • Personnel records containing individually identifiable information