New laws would help and hurt access to information

For advocates of government transparency, the General Assembly’s 2017 session was a mixed bag, resulting in bills that both increased and decreased information available under the Freedom of Information Act.

According to Megan Rhyne, executive director of the Virginia Coalition for Open Government, the session saw fewer FOIA-related bills than in past years. Even so, the group stayed busy opposing legislation that Rhyne said would keep important information from the public.

She said one such bill was HB 1678, which would have allowed information on the chemicals used in hydraulic fracturing – or fracking – to be withheld from mandatory disclosure under FOIA. The bill cleared the House of Delegates but was ultimately defeated in the Senate General Laws and Technology Committee.

Rhyne said the “most concerning” bill this legislative session was HB 2043, which would have made the release of the names of police officers involved in police shooting investigations a Class 1 misdemeanor.

The bill, sponsored by Del. Jackson Miller, R-Manassas, was narrowly approved by the House General Laws Committee. However, Miller withdrew the measure when it reached the House floor.

Many FOIA-related bills did make it through the General Assembly.

Rhyne was glad to see SB 1102 pass both the House and Senate. It would require that records of “unattended deaths” – in which the dead person is not found for several days or weeks – be accessible to family members of the victims involved.

According to Rhyne, “unattended deaths” usually end up being police-confirmed suicides. Under a current FOIA exemption, family members of the deceased can be denied access to the records in the case.

“Now police will have to give families that information instead of using the exemption that allows them to withhold investigative records,” Rhyne said.

To Rhyne, this reflects a greater awareness among lawmakers about openness in government. “I don’t know that we would have seen that kind of incremental change five years ago,” she said.

The 2017 General Assembly also passed bills requiring a list of FOIA officers to be available online, clarifying where minutes from public meetings should be posted and requiring the Freedom of Information Advisory Council to develop an online form that allows the public to comment on the quality of assistance from that agency.

At the same time, several bills were passed that will result in less access to information under FOIA, Rhyne said. They include HB 1587, which would create a FOIA exemption for engineering and construction plans for single-family homes except when requested by the home’s applicant.

Legislators also passed HB 1971, which would allow government agencies to withhold information on investigations into cases of child abuse, neglect or assault.

And SB 1226 would create a FOIA exemption for certain records when a government agency contracts for solar photovoltaic services or buys solar power equipment. The business involved could specify that certain documents are proprietary information or trade secrets, and they would be exempt from mandatory disclosure under FOIA.

Those bills now go to Gov. Terry McAuliffe for approval.

Other bills that would have opened government to more disclosure failed in the General Assembly. For example, HB 2401, which would have required public bodies to take minutes and make audio recordings of closed meetings, died in the House General Laws Committee.

Although this was a low-key session for bills concerning open government, Rhyne is optimistic for the future.
“It has been encouraging to see a growing number of legislators introducing access-friendly bills and also getting good votes on some of these bills,” she said.

Megan Corsano, Staff Writer