Virginia Freedom of Information Act; record exclusions, rule of redaction, etc. (SB494)

This is a transcript of the video clips in which this bill is discussed.

Del. Bill Howell (R-Fredericksburg): THEIR VOTE? THE CLERK WILL CLOSE THE ROLL.

[Unknown]: AYES 31, NOS 8. AYES 31, NOS 8, THE BILL PASSES. SENATE BILL 494, A BILL RELATING TO THE VIRGINIA FREEDOM OF INFORMATION ACT, RECORD EXCLUSIONS, RULE OF REDACTION, NO WAIT ACCORDED TO PUBLIC BODIES DETERMINATION. REPORTED FROM THE COMMITTEE ON GENERAL LAWS AND TECHNOLOGY WITH A SUBSTITUTE. THE SENATOR FROM EASTERN FAIRFAX COUNTY, SENATOR SUROVELL.

Sen. Scott Surovell (D-Mount Vernon): MR. PRESIDENT, I MOVE THE COMMITTEE SUBSTITUTE.

[Unknown]: THE QUESTION IS SHALL THE COMMITTEE SUBSTITUTE BE AGREED TO. ALL IN FAVOR OF THE MOTION WILL SAY AYE. THOSE OPPOSED, NO. THE AYES HAVE IT. THE SUBSTITUTE IS AGREED TO. THE SENATOR FROM EASTERN FAIRFAX COUNTY.

Sen. Scott Surovell (D-Mount Vernon): I MOVE THE BILL BE ENGROSSED AND ADVANCED TO ITS THIRD READING.

Del. Bill Howell (R-Fredericksburg): THE QUESTION IS SHALL THE BILL BE ENGROSSED AND ADVANCED TO ITS THIRD READING ALL IN FAVOR OF THE MOTION WILL SAY AYE. THOSE OPPOSED, NO. THE AYES HAVE IT. THE BILL IS ENGROSSED AND ADVANCED TO ITS THIRD READING THE SENATOR FROM EASTERN FAIRFAX

[Unknown]: MR. PRESIDENT, I MOVE THAT COUNTY. THE RULES BE SUSPENDED AND THE THIRD CONSTITUTIONAL READING BE

Del. Bill Howell (R-Fredericksburg): THANK YOU, SENATOR PRN THE DISPENSED WITH. QUESTION IS SHALL THE RULES BE SUSPENDED AND THE THIRD CONSTITUTIONAL READING BE DISPENSED WITH. ALL IN FAVOR OF THE MOTION WILL RECORD THEIR VOTES AYE, THOSE OPPOSED NO. ARE THE SENATORS READY TO VOTE? HAVE ALL THE SENATORS VOTED? DO ANY SENATORS DESIRE TO CHANGE THEIR VOTE? THE CLERK WILL CLOSE THE ROLL.

[Unknown]: AYES 39, NOS 0. AYES 39, NOS 0. THE MOTION IS AGREED TO. THE SENATOR FROM EASTERN FAIRFAX COUNTY. THANK YOU, MR. PRESIDENT. I MOVE THE BILL PASS AND SPEAKING TO THAT MOTION. THE SENATOR HAS THE FLOOR. THANK YOU, MR. PRESIDENT. LADIES AND GENTLEMEN OF THE SENATE, SENATE BILL 444 IS A BILL TO RESTORE FOIA TO WHAT I THINK EVERYBODY THOUGHT IT SAID BEFORE THE SPROURT ISSUE AN OPINION BACK IN SEPTEMBER ABOUT REDACTION AND ABOUT PRESUMPTIONS. JUST TO GIVE YOU A LITTLE BIT OF BACKGROUND, IN SEPTEMBER, THE SUPREME COURT MADE A RULING AND TO READ THE CASE, MY NAME IS ON IT AND -- BUT WHAT THE RULING BASICALLY SAID WAS THAT IF THERE'S A SINGLE SENTENCE IN A PUBLIC RECORD THAT'S BEEN REQUESTED, A RECORD THAT'S ONE PAGE, FIVE PAGES, 20 PAGES, AND THERE'S ONE SENTENCE IN THAT RECORD THAT FITS IN AN EXEMPTION IN IDENTIFY YEAH, THAT THE GOVERNMENT IS AL -- IN IDENTIFY YEAH, THAT THE GOVERNMENT IS ALLOWED TO WITHHOLD THE ENTIRE DOCUMENT FROM BLEEG PRODUCED INSTEAD OF REDACTING THE SENTENCE AND PRODUCING THE DOCUMENT. PEOPLE DIDN'T THINK THAT'S WHAT FOIA SAID AND WERE CONCERNED ABOUT IT. THE SECOND THING THE SUPREME COURT SAID IS WHEN THE GOVERNMENT SAYS THAT CERTAIN INFORMATION IS EXEMPT FROM DISCLOSURE AND SOMEBODY ASKS THE COURT TO REVIEW THAT DECISION, A COURT, A JUDGE DOESN'T COME TO THAT SCENARIO AND LOOK AT IT AS AN EVEN PLAYING FIELD. THE JUDGE IS REQUIRED TO SAY, YOU KNOW WHAT? THE GOVERNMENT IS THE EXPERT, THESE GOVERNMENT AGENTS KNOW WHAT'S EXEMPT AND WHAT ISN'T, THE GOVERNMENTS ARE THE SPECIALISTS AND WE HAVE TO THE GOVERNMENT'S GREAT WEIGHT IN DECIDING WHAT'S PUBLIC AND WHAT ISN'T. THAT CONCERNED A LOT OF PEOPLE. A LOT OF PEOPLE THOUGHT THAT WAS LIKE SAYING YOU HAVE TO ASK THE FOX HOW MANY CHICKENS ARE IN THE HEN HOUSE. THE WHOLE POINT OF FOIA IS TO PROVIDE SUNSHINE. AFTER THAT DECISION CAME DOWN, THE FOIA COMMISSION ASKED ME TO COME SPEAK TO THE COMMISSION, THEY HAD A HEARING AND THE FOIA COMMISSION DECIDED WE NEEDED TO DO SOMETHING ABOUT THIS AND DO IT QUICKLY. IN CONCEPT, THEY APPROVED THIS LEGISLATION. WHAT THIS LEGISLATION DOES IS THREE THINGS. NUMBER ONE, IT CLARIFIES FOIA TO MAKE IT CLEAR THAT FOIA ADDRESSES INFORMATION AND RECORDS ARE AND NOT RECORDS THEMSELVES. AND IF ANYBODY WANTS TO GET DEEP INTO THE DETAILS OF THAT, WE CAN TALK ABOUT IT, BUT THE SUPREME COURT HAS BEEN VERY PICK REQUEST ABOUT WORDS LATELY AND WHAT INDIVIDUAL WORDS MEAN AND WE WANT TO MAKE IT CHRIS CAL CLEAR THAT FOIA IS ABOUT INFORMATION AND NOT RECORDS. IN CONNECTION WITH THAT, IT ALSO MAKES CLEAR ON LINES 164 TO 171 AND 81 THROUGH 92 THAT REDACTION IS THE PREFERRED METHOD OF PRODUCTION. THAT IS F A DOCUMENT CAN BE REDACTED AND PRODUCED, WE WANT THE GOVERNMENT T REDACT DOCUMENTS AND PRODUCE THEM INSTEAD OF WITHHOLDING THE ENTIRE DOCUMENT. THAT'S THE FIRST THING IT DOES. THE SECOND THING IT DOES, IT SAYS IF SOMEBODY GOES TO COURT TO CHALLENGE WHAT THE GOVERNMENT IS PRODUCING IN A FOIA RESPONSE, THAT THE JUDGE LOOKS AT IT AS A CLEAN SLATE. THE SCALES ARE JUSTICE ARE NOT WEIGHED TO THE GOVERNMENT'S SIDE. IT'S A BALANCED SCALE, THEY LOOK AT IT EVENLY. SOMETIMES AGENCIES HAVE AGENDAS AND SOMETIMES THEY DON'T WANT TO PRODUCE THINGS AND SOMETIMES LOCAL GOVERNMENTS DON'T OR SCHOOLS DON'T AND COLLEGES DON'T AND WE NEED TO GIVE IT A LEVEL PLAYING FIELD. THAT'S ALL THAT SAYS IN LINES 1447 THROUGH 51. THE THIRD THING IS BILL DOES IS IT SAYS THE INTENT OF THE BILL IS TO RESTORE THE LAW SO WHAT IT WAS IN SEPTEMBER OF 2015 LAST YEAR SO NOBODY ELSE IS BEING AFFECTED. THAT'S WHAT IT DOES. I HAD JUST NOTE THAT THIS LEGISLATION IS APPROVED IN CONCEPT BY THE FOIA COMMISSION. IT WAS ALSO APPROVED BIT HOUSE OF DELEGATES ABOUT 30 MINUTES AGO 99-0, AND IT'S A GOOD BILL AND I HOPE THE BODY WOULD SUPPORT IT AND I WOULD BE HAPPY TO ANSWER QUESTIONS. THE SENATOR FROM FAUQUIER COUNTY, SENATOR VOGEL.

Sen. Jill Holtzman Vogel (R-Winchester): THANK YOU, MR. PRESIDENT. SPEAKING TO THE BILL.

[Unknown]: THE SENATOR HAS THE FLOOR.

Sen. Jill Holtzman Vogel (R-Winchester): THERE WAS A LITTLE BIT OF YESTERDAY WHEN IT CAME UP IN CONFUSION ABOUT THIS BILL COMMITTEE AND I CAN SEE FROM THE VOTES, I JUST FELL LIKE A LITTLE BIT OF CLARIFICATION WOULD BE HELPFUL TO THE BODY. I THINK THAT SOME OF THE PEOPLE WHO VOTED AGAINST THE BILL, I THINK PERHAPS VOTED AGAINST IT MERELY -- NOT BECAUSE OF THE SUBSTANCE OF THE BILL, BUT BECAUSE THEY BELIEVE THAT THERE WAS AN ADVERSE RULING IN THE SUPREME COURT AND THE FACT THAT THE LEGISLATURE WAS COMING BACK AND DOING THIS CLEAN-UP WAS SOMEHOW IMPROPER, BUT I WOULD LIKE THE MEMBERS OF THE BODY TO UNDERSTAND SOMETHING. IN THE ORDINARY COURSE OF DOCUMENT PRODUCTION, IF THERE IS A SENSITIVE COMPONENT TO A PIECE OF THE DOCUMENT, SOME PORTION OF THE DOCUMENT, IT IS ALWAYS THE COMMON PRACTICE THAT YOU SIMPLY REDACT THAT LINE, YOU REDACT THAT NAME THAT, PIECE OF INFORMATION. IT IS NEVER THE CASE THAT YOU ARE ABLE TO THEN WITHHOLD THE ENTIRE DOCUMENT. I THINK THAT IS NOT GOOD POLICY AND CERTAINLY NOT THE PRACTICE THAT WE WOULD WANT TO ADOPT. AND SO I THINK THAT THE SENATOR WAS ACTUALLY DOING SOMETHING THAT IS ACTUALLY WHAT WE ALWAYS DO AND IS GOOD PRACTICE, AND SO I WOULD JUST WANT TO MAKE THAT CLARIFICATION AND ENCOURAGE THE BODY TO SUPPORT THE BILL.

[Unknown]: THANK YOU, SENATOR. THE SENIOR SENATOR FROM LOUDOUN, SENATOR BLACK.

Sen. Dick Black (R-Leesburg): THANK YOU, MR. PRESIDENT. WOULD THE GENTLEMAN FROM EASTERN FAIRFAX COUNTY RISE?

[Unknown]: WOULD THE SENATOR YIELD FOR A QUESTION.

Sen. Dick Black (R-Leesburg): HE YIELDS, SENATOR.

[Unknown]: I YIELD. THE THING THAT HAS SORT OF GOT MY ATTENTION WHEN I LOOKED AT IT WAS THAT THIS WAS A DOCUMENT FROM THE DEPARTMENT OF THAT WHAT YOU'RE DOING IS SOMETHING BROADER IN SCOPE. I MEAN, VERY USED IN SCOPE RELATIVE TO THAT ONE THING. WOULD ANYTHING THAT WE'RE DOING CORRECTIONS AND I UNDERSTAND HERE PREVENT THE DEPARTMENT OF CORRECTIONS OR SOME OTHER VERY SENSITIVE DEPARTMENT LIKE THAT FROM DOING VERY, VERY EXTENSIVE REDACTIONS THAT MIGHT LEAVE A DOCUMENT RELATIVELY -- RELATIVELY CONTENT-FREE WHEN IT REACHES YOU? THE SENATOR FROM EASTERN FAIRFAX COUNTY. THANK YOU, MR. PRESIDENT. WHAT I WOULD SAY TO THE SENIOR SENATOR FROM LOUD DEPOSIT, MR. PRESIDENT, IS THAT -- LOUDOUN, MR. PRESIDENT, IS THERE'S NOTHING PROHIBITING THIS AND IF THEY WOULD CONCLUDES TO DO THAT AND WHOEVER IT WAS THAT REQUESTED THE DOCUMENT DIDN'T LIKE WHAT THEY DID OR THOUGHT THEY EXCEEDED THEIR AUTHORITY, THEY COULD THEN GO TO A COURT AND ASK THE JUDGE TO REVIEW IT AND THE JUDGE WOULD TAKE THE DOCUMENT BACK IN CHAMBERS AND LOOK AT IT IN CAMERA, WHAT MEANS WITHOUT EVERYBODY ELSE LOOKING AT IT, AND DECIDE WHETHER THEY MADE THE RIGHT DECISION OR NOT AND EITHER AFFIRM OF THE DECISION OF THE PUBLIC BODY, WHETHER THE DEPARTMENT OF CORRECTIONS OR ANYBODY ELSE, OR SAY THEY MADE THE WRONG DECISION AND THEY HAVE TO RELEASE MORE INFORMATION BECAUSE SOME OF THAT INFORMATION THEY REDACTED REALLY IS NOT EXEMPT. SO THAT'S ALL IT DOES. IT'S MORE ABOUT PROCESS THAN FURTHER QUESTION. SUBSTANCE. WOULD THE SENATOR YIELD FOR AN ADDITIONAL QUESTION. HAPPY TO YIELD. HE YEED YIELDS, SENATOR. COULD THE GENTLEMAN EXPLAIN WHY THE SUPREME COURT MADE THE DECISION IT DID WITH THE UNDERSTANDING -- I UNDERSTAND WHAT THE GENTLELADY SAID AND THE GENERAL RULE IS THE RULE OF REDACTION. WAS IT SIMPLY A -- SOMETHING IN STATUTORY CONSTRUCTION OR JUST WHAT? THE SENATOR FROM EASTERN FAIRFAX COUNTY. I'D BE HAPPY TO ANSWER THE GENTLEMAN. AS I SAID EARLIER, THE SUPREME COURT HAS BEEN PLACING A LOT OF WEIGHT ON INDIVIDUAL WORDS LATELY AND THAT'S FINE, THAT'S THEIR PREROGATIVE, BUT WHAT THEY SAID WAS THE WAY FOIA WAS DRAFTED, IN SOME XEMPINGSS, IT REFERRED TO THE WORD PORTIONS OF DOCUMENT. AND THE SUPREME COURSE SAID BECAUSE WE USED PORTIONS IN SOME EXEMPTIONS AND NOT IN OTHERS, WE MEANT TO SAY THE ENTIRE DOCUMENT GOES OUT, BUT OTHER EXEMPTIONS, WE MEANT TO SAY YOU CAN REDACT, BUT MOST PEOPLE UNDERSTOOD FOIA DIDN'T THINK WE WERE THINKING IN OUR COMMITTEES ALL THAT PRECISELY WHEN WE THREW THE WORD PORTIONS INTO EXEMPTION HERE OR THERE, SO THAT'S WHY EVERYBODY WAS SO ALARMED BY THE DECISION. THAT'S WHY WE INTRODUCED THIS CLARIFYING LANGUAGE TO MAKE IT CLEAR THAT REDACTION IS THE PREFERRED POLICY. I THANK THE GENTLEMAN. THE SENATOR FROM STAFFORD, SENATOR STUART.

Sen. Richard Stuart (R-Westmoreland): THANK YOU, MR. PRESIDENT. SPEAKING TO THE BILL.

[Unknown]: THE SENATOR HAS THE FLOOR.

Sen. Richard Stuart (R-Westmoreland): MR. PRESIDENT, I RISE IN SUPPORT OF THE BILL AND I'LL TRY TO BE BRIEF AND EXPLAIN WHY WHAT WE CAW THE FOIA ACT, THE FREEDOM OF INFORMATION ACT, AND THE GENTLEMAN FROM FAIRFAX IS EXACTLY RIGHT. IT'S ABOUT DISCLOSING INFORMATION TO THE PUBLIC ABOUT WHAT'S GOING ON IN GOVERNMENT. AND I THINK MOST OF US SUPPORT THAT PROCESS. IT WOULD BE PRETTY DANGEROUS IF WE DID ALL THIS IN SECRECY AND THAT'S WHAT A DECISION LIKE THIS COULD LEAD TO. BECAUSE IF YOU ADOPT A POLICY THAT IF YOU REDACT A PORTION OF A DOCUMENT, YOU DON'T HAVE TO PROVIDE ANY OF THE INFORMATION IN THE DOCUMENT, I THINK THAT COULD BE A PRETTY DANGEROUS RESULT. AND IF YOU EXTRAPOLATE FROM THE COURT'S DECISION, AND I THINK WE SHOULD FOCUS LESS ON THE COURT'S DECISION AND MORE ABOUT WHAT THE FREEDOM OF INFORMATION ACT IS FOR, YOU COULD END UP WITH A PROCESS WHERE THE SMALLEST REDACTION COULD LEAD TO ALL THE INFORMATION THAT SHOULD HAVE BEEN DISCLOSED TO THE PUBLIC BEING WITHHELD, AND THAT'S NOT WHAT WE INTENDED WHEN WE ADOPTED THE FREEDOM OF INFORMATION ACT. AND I THINK THIS IS AN IMPORTANT BILL AND IT CLARIFIES A VERY IMPORTANT PROVISION, AND I HOPE YOU ALL WILL SUPPORT IT.

[Unknown]: THANK YOU, SENATOR. THE JUNIOR SENATOR FROM VIRGINIA BEACH, SENATOR DeSTEPH.

Sen. Bill DeSteph (R-Virginia Beach): MR. PRESIDENT, SPEAKING TO THE BILL.

[Unknown]: THE SENATOR HAS THE FLOOR.

Sen. Bill DeSteph (R-Virginia Beach): MR. PRESIDENT, YESTERDAY I JUST WANTED TO EXPLAIN MY NO VOTE ON THIS. WE WERE HANDED ABOUT THREE MINUTES BEFORE WE HAD TO VOTE ON THIS A 55-PAGE SUBSTITUTE WITH QUITE A FEW CHANGES. WHEN WE CAME TO THE POINT OF WHICH WE HAD TO VOTE ON THIS, I HAD ONLY GONE THROUGH ABOUT 25% OF IT. LAST NIGHT, I REVIEW THE REST OF THE SUBSTITUTE AND FULLY SUPPORT THE BILL NOW. HOWEVER, COMMA, YESTERDAY AT THE TIME, SINCE I DIDN'T HAVE A CHANCE TO READ A 55-PAGE SUBSTITUTE AND ALL OF THE CHANGES, I DIDN'T THINK IT WAS RIGHT TO SUPPORT IT. THANK YOU.

Del. Bill Howell (R-Fredericksburg): THANK YOU, SENATOR. THE QUESTION IS SHALL SENATE BILL 494 PASS. ALL IN FAVOR OF THE MOTION WILL RECORD THEIR VOTES AYE, THOSE OPPOSED NO. ARE THE SENATORS READY TO VOTE? HAVE ALL THE SENATORS VOTED? DO ANY SENATORS DESIRE TO CHANGE THEIR VOTE? THE CLERK WILL CLOSE THE ROLL.

[Unknown]: AYES 38, NOS ONE. AYES 38, NOS ONE.

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SENATE BILL 494. THE SENATOR FROM EASTERN SUROVELL. FAIRFAX COUNTY, SENATOR MR. PRESIDENT, THE REQUEST OF HIS EXCELLENCY, SKILLED THAT THIS BILL GO BYE FOR THE DAY. WITHOUT OBJECTION, SENATE BILL 494 WILL GO BYE FOR THE DAY. SENATE BILLS VETOED BY THE GOVERNOR. SENATE BILL 612. THE SENATOR FROM GRAYSON. EXCUSE ME, THE SENATOR FROM BUCKINGHAM. THE NICEST THING ANYBODY SAID

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TO. ALL THOSE IN FAVOR OF THE MOTION WILL SAY AYE, THOSE OPPOSED NO. THE NOS HAVE IT, THE SUBSTITUTE IS REJECTED. SENATE BILLS WITH GOVERNOR'S RECOMMENDATIONS. SENATE BILL 494. THE SENATOR FROM EASTERN FAIRFAX COUNTY, SENATOR SUROVELL.

Sen. Scott Surovell (D-Mount Vernon): THANK YOU, MR. PRESIDENT. I MOVE THAT WE -- WITH THE RECOMMENDATION THAT WE REJECT THE GOVERNOR'S AMENDMENT, I MOVE THAT WE --

[Unknown]: REJECT IT.

Sen. Scott Surovell (D-Mount Vernon): REJECT THE AMENDMENT AND SPEAKING TO THAT MOTION.

[Unknown]: THE SENATOR HAS THE FLOOR. THANK YOU, MR. PRESIDENT. LADIES AND GENTLEMEN, I'VE SPOKEN WITH THE GOVERNOR'S OFFICE AND THEY WOULD LIKE TO WITHDRAW THEIR PROPOSED SUBSTITUTE TO THIS BILL AND SO IN LIGHT OF THAT, I WOULD ASK THAT WE REJECT THE SUBSTITUTE SO HE CAN GO AHEAD AND GET THIS BILL SIGNED AND MOVE IT ON.

Del. Bill Howell (R-Fredericksburg): THANK YOU, SENATOR. WITH THE RECOMMENDATION THAT IT BE REJECTED, THE QUESTION IS SHALL THE GOVERNOR'S RECOMMENDATIONS BE AGREED TO. ALL IN FAVOR OF THE MOTION WILL

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