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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA

Senator R. Edward Houck, Chair Maria J.K. Everett, Esq., Executive Director
Alan Gernhardt, Esq., Staff Attorney
foiacouncil@leg.state.va.us

General Assembly Building ~ 910 Capitol Street, Second Floor ~ Richmond, Virginia 23219
804-225-3056 ~ (Toll Free) 1-866-448-4100 ~ (Fax) 804-371-0169 ~ http://dls.state.va.us/foiacouncil.htm

May 20, 2008

2008 FOIA LEGISLATIVE UPDATE
NOTE: Unless otherwise stated, the changes in the law described herein will take effect
July 1, 2008.

I. Introduction

The General Assembly passed a total of 21 bills amending the Virginia
Freedom of Information Act (FOIA) during the 2008 Regular Session. One
bill amending FOIA was passed as a recommendation of the Freedom of
Information Advisory Council (FOIA Council): SB 131 (Houck)/HB 854
(Ebbin), concerning emergency meetings of local public bodies.
Additionally, SB 132 (Houck)/HB 634 (May), amending provisions of the
Government Data Collection and Dissemination Practices Act, passed as a
joint recommendation of the FOIA Council and the Joint Commission on
Technology and Science (JCOTS). Similarly, SB 133 (Houck) and HB 633
(May), amending the Personal Information Privacy Act, also passed as a
joint recommendation of the FOIA Council and JCOTS. SB 529 (Houck),
concerning access to concealed carry handgun permits, was introduced as a
recommendation of the FOIA Council and was referred to the FOIA Council
for further study during the 2008 interim.

Of the 21 bills, nine bills created seven new record exemptions to FOIA as
follows:
� Exempts certain records of public institutions of higher education
concerning fundraising and donors. (HB 407/SB 130 amending � 2.2-
3705.4);
� Exempts certain records of the Virginia Military Advisory Council,
the Virginia National Defense Industrial Authority, or a local or
regional military affairs organization appointed by a local governing
body; also adds a corresponding meetings exemption. (HB 520
amending � 2.2-3705.2);
� Exempts certain proprietary or confidential documents provided by an
insurance carrier to the State Health Commissioner. (HB 603/SB 396
amending � 2.2-3705.6);
� Exempts investigator notes, and other correspondence and information
with respect to an active investigation conducted by or for the Board
of Education related to the denial, suspension, or revocation of teacher
licenses; also contains a corresponding meetings exemption. (HB 768
amending � 2.2-3705.3);
� Exempts records maintained by the Department of the Treasury or
participants in the Local Government Investment Pool, to the extent
such records relate to information required to be provided by such
participants to the Department to establish accounts. (HB 1367
amending � 2.2-3705.7);
� Exempts certain records supplied by a private or nongovernmental
entity to the Inspector General of the Virginia Department of
Transportation for the purpose of an audit, special investigation, or
any study requested by the Inspector General's Office. (SB 210
amending � 2.2-3705.6);
� Exempts certain records of the Office of the Attorney General acting
pursuant to its enforcement authority under the Master Settlement
Agreement (regarding certain tobacco product manufacturers), to the
extent that such records contain reports, affidavits, correspondence, or
other information submitted by a private business entity or principal
thereof to the Office of the Attorney General. (SB 545 amending �
2.2-3705.3).

Three bills add new closed meeting exemptions to � 2.2-3711:
� Exempts certain meetings of the Virginia Military Advisory Council,
the Virginia National Defense Industrial Authority, or a local or
regional military affairs organization appointed by a local governing
body; also contains a corresponding records exemption. (HB 520);
� Exempts the discussion or consideration by the Board of Education of
records related to the denial, suspension, or revocation of teacher
licenses; also adds a corresponding records exemption. (HB 768);
� Exempts the discussion or consideration of confidential proprietary
records provided by a private business to certain state, local, or
regional industrial or economic development authorities or

2
organizations for business, trade and tourism development to be
conducted in meetings not open to the public. (SB 593).

Eleven bills amend existing provisions of FOIA as follows:
� Establishes the Adult Fatality Review Team and adds Adult Fatality
Review Team records to the existing exemption for Child Fatality
Review Team records. (HB 251 amending � 2.2-3705.5);
� Removes an existing exemption for certain information contained in
rabies vaccination certificates; contains provisions outside FOIA
addressing the retention and destruction of such records to ensure that
treasurers only retain the information required to be collected and
made available for public inspection. (HB 537 amending �� 2.2-
3705.7 and 3.1-796.87:1).
� Replaces the term "mentally retarded" with the term "person with
intellectual disability" and replaces the term "mental retardation" with
the term "intellectual disability" throughout the Code, including
technical changes within FOIA. Note that the provisions of this act
shall not become effective unless reenacted by the 2009 Session of the
General Assembly. (HB 760/SB 620 amending �� 2.2-3705.3 and
2.2-3705.5);
� Allows certain local public bodies to meet by electronic
communication means without a quorum of the public body
physically assembled at one location under certain conditions when
the Governor has declared a state of emergency. Also contains a
technical amendment. (HB 854/SB 131 amending �� 2.2-3701, 2.2-
3708, and 2.2-3714);
� Broadens the current FOIA exemption to apply to any type of
franchise and protects certain trade secrets and confidential
proprietary information from both bidders for the franchise and the
person who is ultimately awarded the franchise. (HB 1271 amending
� 2.2-3705.6);
� Abolishes the Department of Charitable Gaming and places the
regulation of charitable gaming under the Department of Agriculture
and Consumer Services; makes technical changes within FOIA to
reflect the departmental change. (HB 1280/SB 199 amending �� 2.2-
3705.3 and 2.2-3705.6);
� Exempts from public disclosure certain proprietary records submitted
to the Innovative Technology Authority as part of a grant application
by amending current provisions applicable to the Commonwealth

3
Health Research Board (CHRB); also contains a corresponding
amendment to the existing CHRB meetings exemption. (HB 1458/SB
726 amending �� 2.2-3705.6 and 2.2-3711).

Section II of this update presents a brief overview of amendments to
FOIA section by section in order to provide context and organization to the
numerous bills. Section III presents a brief overview of other access-related
legislation passed during the 2008 Session of the General Assembly.

For more specific information on the particulars of each bill, please
see the bill itself. Unless otherwise indicated, the changes will become
effective July 1, 2008.

II. Amendments to the Freedom of Information Act

� 2.2-3701. Definitions.

Amends the definition of "meeting" to include a reference to � 2.2-3808.1.
HB 854 (2008 Acts of Assembly c. 789), SB 131 (2008 Acts of Assembly c.
233).

� 2.2-3705.2. Exclusions to application of chapter; records relating to
public safety.

Adds an exemption for certain records of the Virginia Military Advisory
Council, the Virginia National Defense Industrial Authority, or a local or
regional military affairs organization appointed by a local governing body;
also adds a corresponding meetings exemption. HB 520 (2008 Acts of
Assembly, c. 721).

� 2.2-3705.3. Exclusions to application of chapter; records relating to
administrative investigations.

Replaces the term "mentally retarded" with the term "person with
intellectual disability" and replaces the term "mental retardation" with the
term "intellectual disability" throughout the Code, including technical
changes within FOIA. Note that the provisions of this act shall not become
effective unless reenacted by the 2009 Session of the General Assembly.

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HB 760 (2008 Acts of Assembly, c. 821), SB 620 (2008 Acts of Assembly,
c. 832).

Adds an exemption for investigator notes, and other correspondence and
information with respect to an active investigation conducted by or for the
Board of Education related to the denial, suspension, or revocation of
teacher licenses; also adds a corresponding meetings exemption. HB 768
(2008 Acts of Assembly, c. 668).

Abolishes the Department of Charitable Gaming and places the regulation of
charitable gaming under the Department of Agriculture and Consumer
Services; makes technical changes within FOIA to reflect the departmental
change. HB 1280 (2008 Acts of Assembly, c. 387), SB 199 (2008 Acts of
Assembly, c. 689).

Adds an exemption for certain records of the Office of the Attorney General
acting pursuant to its enforcement authority under the Master Settlement
Agreement (regarding certain tobacco product manufacturers), to the extent
that such records contain reports, affidavits, correspondence, or other
information submitted by a private business entity or principal thereof to the
Office of the Attorney General. SB 545 (2008 Acts of Assembly, c. 758).

� 2.2-3705.4. Exclusions to application of chapter; educational records
and certain records of educational institutions.

Adds an exemption for certain records of public institutions of higher
education concerning fundraising and donors. HB 407 (2008 Acts of
Assembly, c. 665), SB 130 (2008 Acts of Assembly, c. 561).

� 2.2-3705.5. Exclusions to application of chapter; health and social
services records.

Establishes the Adult Fatality Review Team and adds Adult Fatality Review
Team records to existing exemption for Child Fatality Review Team records.
HB 251 (2008 Acts of Assembly, c. 539).

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effective unless reenacted by the 2009 Session of the General Assembly.
HB 760 (2008 Acts of Assembly, c. 821), SB 620 (2008 Acts of Assembly,
c. 832).

� 2.2-3705.6. Exclusions to application of chapter; proprietary records
and trade secrets.

Adds an exemption for certain proprietary or confidential documents
provided by an insurance carrier to the State Health Commissioner. HB 603
(2008 Acts of Assembly, c. 71), SB 396 (2008 Acts of Assembly, c. 102).

Broadens the current FOIA exemption to apply to any type of franchise and
protects certain trade secrets and confidential proprietary information from
both bidders for the franchise and the person who is ultimately awarded the
franchise. HB 1271 (2008 Acts of Assembly, c. 736).

Exempts from public disclosure certain proprietary records submitted to the
Innovative Technology Authority as part of a grant application by amending
current provisions applicable to the Commonwealth Health Research Board
(CHRB); also contains a corresponding amendment to the existing CHRB
meetings exemption. HB 1458 (2008 Acts of Assembly, c. 743), SB 726
(2008 Acts of Assembly, c. 633).

Adds an exemption for certain records supplied by a private or
nongovernmental entity to the Inspector General of the Virginia Department
of Transportation for the purpose of an audit, special investigation, or any
study requested by the Inspector General's Office. SB 210 (2008 Acts of
Assembly, c. 266).

� 2.2-3705.7. Exclusions to application of chapter; records of specific
public bodies and certain other limited exemptions.

Repeals an existing exemption for certain information contained in rabies
vaccination certificates; contains provisions outside FOIA addressing the

6
retention and destruction of such records to ensure that treasurers only retain
the information required to be collected and made available for public
inspection. HB 537 (2008 Acts of Assembly, c. 16).

Adds a FOIA exemption for the records maintained by the Department of
the Treasury or participants in the Local Government Investment Pool, to the
extent such records relate to information required to be provided by such
participants to the Department to establish accounts. HB 1367 (2008 Acts of
Assembly, c. 739)

� 2.2-3708. Electronic communication meetings.

Allows certain local public bodies to meet by electronic communication
means without a quorum of the public body physically assembled at one
location under certain conditions when the Governor has declared a state of
emergency. Also contains a technical amendment. HB 854 (2008 Acts of
Assembly c. 789), SB 131 (2008 Acts of Assembly c. 233).

� 2.2-3711. Closed meetings authorized for certain limited purposes.

Adds an exemption for certain meetings of the Virginia Military Advisory
Council, the Virginia National Defense Industrial Authority, or a local or
regional military affairs organization appointed by a local governing body;
also adds a corresponding records exemption. HB 520 (2008 Acts of
Assembly, c. 721).

Adds an exemption for the discussion or consideration by the Board of
Education of records related to the denial, suspension, or revocation of
teacher licenses; also adds a corresponding records exemption. HB 768
(2008 Acts of Assembly, c. 668).

Adds an exemption for the discussion or consideration of confidential
proprietary records provided by a private business to certain state, local, or
regional industrial or economic development authorities or organizations for
business, trade and tourism development to be conducted in meetings not
open to the public. SB 593 (2008 Acts of Assembly, c. 626).

Amends a current meeting exemption to allow the discussion or
consideration of certain proprietary records submitted to the Innovative
Technology Authority as part of a grant application; also contains a

7
corresponding records exemption. HB 1458 (2008 Acts of Assembly, c.
743), SB 726 (2008 Acts of Assembly, c. 633).

� 2.2-3714. Violations and penalties.

Adds a reference to � 2.2-3708.1 in regard to violations willfully and
knowingly made. HB 854 (2008 Acts of Assembly c. 789), SB 131 (2008
Acts of Assembly c. 233).

III. Other Access-Related Legislation

Title 2.2 Administration of Government

Government Data Collection and Dissemination Practices Act
(GDCDPA); personal information; definition; collection of same;
penalty for violation; jurisdiction of district courts. Provides that no
agency shall require an individual to furnish or disclose his social security
number (SSN) or driver's license number unless the furnishing or disclosure
of such number is (i) authorized or required by state or federal law and (ii)
essential for the performance of that agency's duties. The bill also
strengthens the remedies provisions of the GDCDPA by adding civil
penalties matching those in FOIA, and grants general district courts the
authority to hear GDCDPA cases. Additionally, the bill has enactment
clauses giving it a delayed effective date of July 1, 2009, and requires state
agencies to study their own collection and use of SSNs and report to the
FOIA Council and JCOTS on such collection and use by October 1, 2008.
The bill also contains a fourth enactment clause providing for the gathering
of similar information about the use and collection of SSNs by cities,
counties and towns with a population greater than 15,000. The bill is a
recommendation of the Freedom of Information Advisory Council and
JCOTS. HB 634 (2008 Acts of Assembly, c. 840), SB 132 (2008 Acts of
Assembly, c. 843).

Address confidentiality for victims of domestic violence; program
expanded; penalty. Expands the address confidentiality for victims of
domestic violence program currently implemented in the County of
Arlington to the Counties of Albemarle, Augusta, Dickenson, Fairfax,
Henry, Lee, Rockbridge, Russell, Scott, Washington, and Wise as well as the
Cities of Buena Vista, Charlottesville, Lexington, Martinsville, Norfolk, and

8
Roanoke. The bill also provides that an applicant to the program may apply
in person at a domestic violence program, which is defined as a public and
not-for-profit agency the primary mission of which is to provide services to
victims of sexual or domestic violence. Currently, such applications are
made directly to the Office of the Attorney General. SB 764 (2008 Acts of
Assembly, c. 649).

Title 6.1 Banking and Finance

Payday Loan Act. Requires the State Corporation Commission, by January
1, 2009, to certify and contract with one or more third parties to develop,
implement, and maintain an Internet-accessible database, and requires
payday lenders to query the database prior to making any loan to determine
whether the loan is permissible. Provides that the information in the
database is confidential and exempt from FOIA. HB 12 (2008 Acts of
Assembly, c. 849), SB 588 (2008 Acts of Assembly, c. 876).

Title 8.01 Civil Remedies and Procedure

Circuit Court clerks; electronic filing and recording; digital
reproduction; recordation of judgments; secure remote access; deed
cover sheets; fees collected by clerks. Clarifies a number of issues for
circuit court clerks including: use of the last four digits of a social security
number on judgments (filer is responsible); that the clerk may provide
information from a locality to remote access users; filer is responsible for
cover sheet accuracy; allowing the clerk to rely on the cover sheet to index;
the difference between e-filing of court records and e-recording of land
records. The bill also provides standard definitions of subscriber, secure
remote access, public access, and electronic recording of land records. The
bill also establishes a $5 per document fee for e-recording of a land record
and provides for a $50 per month subscription rate for remote access to land,
civil, and criminal records. HB 1106 (2008 Acts of Assembly, c. 823), SB
622 (2008 Acts of Assembly, c. 833).

Title 10.1 Conservation

Air and Water Boards permit issuance process. Establishes a uniform
permit issuance process for the Air Pollution Control Board (Air Board) and
the State Water Control Board (Water Board). Among other changes,

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provides that if either Board conducts a meeting by electronic
communication, it shall have at least one forum open to the public and
individual Board members may participate from any location regardless of
whether it is open to the public. HB 1332 (2008 Acts of Assembly, c. 557),
SB 423 (2008 Acts of Assembly, c. 276).

Title 16.1 Courts Not of Record

Expungement of juvenile records. Requires that when a clerk destroys
records pursuant to a juvenile record expungement, he shall destroy all
records, including electronic records. HB 1258 (2008 Acts of Assembly, c.
519).

Title 17.1 Courts of Record

Title 18.2 Crimes and Offenses Generally

Database breach notification. Requires an individual or entity that owns
or licenses computerized data that includes personal information to disclose
any breach of the security of the system following discovery or notification
of the breach to the Office of the Attorney General and any affected resident
of the Commonwealth whose unencrypted and unredacted personal
information was, or is reasonably believed to have been accessed and
acquired by an unauthorized person. A breach is defined as the unauthorized
access and acquisition of unencrypted and unredacted computerized data that

10
compromises the security or confidentiality of personal information
maintained by an individual or entity as part of a database of personal
information regarding multiple individuals and that causes, or the individual
or entity reasonably believes has caused, or will cause, identity theft or other
fraud to any resident of the Commonwealth. Violations by a state-charted or
licensed financial institution shall be enforceable exclusively by the financial
institution's primary state regulator. Violations by an entity regulated by the
State Corporation Commission shall be enforceable exclusively by the
Commission. All other violations shall be enforced by the Office of the
Attorney General, which may impose a civil penalty not to exceed $150,000
per breach or series of breaches of a similar nature that are discovered in a
single investigation. The bill specifies that its provisions do not limit an
individual from recovering direct economic damages. HB 1469 (2008 Acts
of Assembly, c. 801), SB 307 (2008 Acts of Assembly, c. 566).

Title 19.2 Criminal Procedure

Juror information confidential. Provides that a court may in a criminal
trial, upon the motion of either party or its own motion, and for good cause
shown, issue an order regulating the disclosure of personal information of a
juror to any person other than the counsel for either party. Good cause
shown includes, but is not limited to, a likelihood of bribery, tampering, or
physical injury to or harassment of a juror. The order may be modified as
deemed appropriate by the court. "Personal information" is defined as any
information collected by the court, clerk, or jury commissioner including,
but not limited to, a juror's name, age, occupation, home and business
addresses, telephone numbers, email addresses, and any other identifying
information that would assist another in locating or contacting the juror. The
bill also directs the Supreme Court to prescribe and publish rules that
provide for the protection of a juror's personal information. HB 181 (2008
Acts of Assembly, c. 538).

Title 23 Educational Institutions

Management agreement with Virginia Commonwealth University.
Provides a management agreement between the Commonwealth of Virginia
and Virginia Commonwealth University pursuant to the Restructured Higher
Education Financial and Administrative Operations Act. Contains various
provisions regarding access to records, particularly procurement records.

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HB 1124 (2008 Acts of Assembly, c. 594), SB 358 (2008 Acts of Assembly,
c. 616).

Public institutions of higher education; operational authority. Provides
operational authority for public institutions of higher education in the areas
of information technology, procurement, and capital outlay pursuant to the
Restructuring Act of 2005. Contains various provisions regarding access to
records, particularly procurement records. HB 1390 (2008 Acts of
Assembly, c. 824), SB 442 (2008 Acts of Assembly, c. 829).

Title 37.2 Mental Health, Mental Retardation and Substance Abuse
Services

Involuntary commitment; outpatient treatment; etc. Makes numerous
changes to this and other titles regarding emergency custody orders,
temporary detention orders, and involuntary commitment proceedings.
Among other changes, modifies the existing provision of � 37.2-818 stating
that records of involuntary commitment hearings are exempt from FOIA by
providing that the subject of the hearing may waive confidentiality, and by
allowing the court to disclose dispositional orders under certain conditions.
HB 499 (2008 Acts of Assembly, c. 850), SB 246 (2008 Acts of Assembly,
c. 870).

Title 52 Police (State)

Virginia Fusion Intelligence Center; confidentiality; immunity. Provides
that papers, records, documents, reports, materials, databases or other
evidence or information relative to criminal intelligence or any terrorism
investigation in the possession of the Virginia Fusion Intelligence Center
within the Department of State Police is confidential and not subject to the
Virginia Freedom of Information Act or the Government Data Collection
and Dissemination Practices Act. The Department must conduct an annual
review of such information and remove any which is determined to not have
a nexus to terroristic activity. The bill also provides that people who have
access to information maintained by the Fusion Center are not subject to
subpoena in any civil action concerning criminal intelligence information
maintained by the Fusion Center. The bill restricts the release or
dissemination of information without prior authorization from the Fusion
Center and punishes any person who knowingly disseminates information
with a Class 1 misdemeanor. If such unauthorized release or dissemination

12
results in death or serious bodily injury the penalty is a Class 4 felony.
There is an immunity provision for people who furnish information on
criminal violations to a governmental entity established for the purposes of
detecting and preventing acts of terrorism. HB 1007 (2008 Acts of
Assembly, c. 792).

Title 54.1 Professions and Occupations

Advance Health Care Directive Registry; creation. Requires the
Department of Health to make available a secure online central registry for
advance health care directives. The registry shall be accessible to health care
providers licensed by the Board, through a site maintained by the
Department of Health. Provides that data in the registry shall be confidential
and exempt from FOIA. HB 805 (2008 Acts of Assembly, c. 301), SB 290
(2008 Acts of Assembly, c. 696).

Title 58.1 Taxation

Confidentiality of taxpayer information. Includes as a confidential tax
document any document that is required to be filed with the Department of
Conservation and Recreation under the land preservation tax credit program.
HB 662 (2008 Acts of Assembly, c. 785).

Title 59.1 Trade and Commerce

Personal Information Privacy Act; social security numbers. Prohibits
the dissemination of another person's social security number, regardless of
whether such number is obtained from a public or private record. Currently,
the prohibition against dissemination only applies to social security numbers
obtained from private sources. This bill is a recommendation of the Freedom
of Information Advisory Council and the Joint Commission on Technology
and Science. HB 633 (2008 Acts of Assembly, c. 820), SB 133 (2008 Acts
of Assembly, c. 562).

Title 62.1 Waters of the State, Ports and Harbors

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communication, it shall have at least one forum open to the public and
individual Board members may participate from any location regardless of
whether it is open to the public. HB 1332 (2008 Acts of Assembly, c. 557),
SB 423 (2008 Acts of Assembly, c. 276).

IV. Resolutions

Commending Nolan T. Yelich. Mr. Yelich served on the FOIA Council
from its inception in 2000 until his retirement from state service in 2007. SJ
238.