Va. legislators mull higher ed exemptions to public records laws

VIRGINIA — At the request of universities in the state, Virginia legislators have introduced legislation that would create freedom of information act exemptions for certain higher education records.

One set of bills, HB 703 and SB 78, would create an “exemption for certain administrative investigations by higher educational institutions” under the state’s public records law. These would amend a section of the act related to existing exemptions that apply to other agencies conducting employment discrimination complaints and would create an exemption for records obtained or created by “the auditors appointed by any public institution of higher education” during an investigation.

Under the proposal, investigators’ notes and correspondence related to an active investigation would be private. The results of the investigation, such as a final report, would be public after the investigation is completed, according to the legislation and those backing it.

According to the legislation, the results of an employment discrimination investigation could be released in a way that doesn’t disclose “the identity of charging parties, persons supplying the information, or other individuals involved in the investigation.” Records relating to other types of audits or investigations included in the exemption can also be released as long as they don’t “reveal the identity of the complainants or persons supplying information to investigators” — but if the investigation doesn’t result in “corrective action,” its subject has to give consent before his or her identity is released, according to the legislation.

Another bill, HB 219, would expand an existing FOIA exemption for “confidential letters and statements of recommendation placed in the records of educational agencies or institutions” to include recommendations related to applications for promotion — not just those related to applications for employment, as currently specified. The House voted unanimously in support of the bill on Monday.

The legislation related to administrative investigation records comes at the request of the University of Virginia, while George Mason University voiced support for the legislation related to the letters of recommendation.

Gary Frink, legislative director to HB 703 sponsor Delegate C. Todd Gilbert, deferred comment to UVA. Senator Frank M. Ruff. Jr., who sponsored SB 78 at the request of UVA, said the legislation is, in part, an attempt to help the university investigate a given charge or allegation “without it being jeopardized by media.”

“If it gets in media before they complete the investigation it can take a strange turn and not a very honest turn sometimes,” Ruff said.

Despite this claim, Rob Lockridge, UVA’s executive assistant to the president for state governmental relations, said the push for the exemption was more preemptive than reactionary — the school has received FOIA requests for reports on closed investigations, he said, but it hasn’t yet had a FOIA request for an ongoing investigation.

University of Virginia spokesman Anthony de Bruyn said the institution considers the bills to be “clarifying amendments” that would apply the same exemptions to records at public colleges and universities that are currently available to other agencies in the state. Both Lockridge and de Bruyn said the exemption would give those interviewed during such investigations more security to speak freely.

“Confidentiality is crucial to the complaint investigation processes,” de Bruyn said. “Investigation outcomes are only as reliable as the information our investigative officers are able to obtain from parties and witnesses.”

The timeline of the investigation can vary from case to case, de Bruyn said.

In December, George Mason University counsel Thomas M. Moncure, Jr., discussed the proposal for the recommendations exemption with the Virginia Freedom of Information Advisory Council and “explained that especially in a higher educational setting, people were extremely reluctant to provide frank appraisals of their colleagues when they knew that the subjects will be privy to those appraisals,” according to a meeting summary online. George Mason University spokeswoman Michele McDonald separately confirmed that Moncure spoke to the committee about the legislation.

On their respective websites, the Virginia Press Association and the Virginia Coalition for Open Government, take neutral positions on these pieces of legislation.

“Individually, this doesn’t particularly concern me,” Virginia Coalition for Open Government Executive Director Megan Rhyne said. “What does concern me overall is the notion that exemptions continue to be expanded.”

That’s why Rhyne’s glad to support a new push for a broad review of the growing list of exemptions, backed by Delegate James LeMunyon.

The resolution, which was introduced in January and is awaiting action from the rules committee, calls for a study of all of the state’s FOIA exemptions “to determine the continued applicability or appropriateness of such exemptions.”

It’s been about 15 years since the last study of this kind — and that review, the new resolution points out, paved the way for the state’s Freedom of Information Advisory Council and ”a substantive rewrite of FOIA.” LeMunyon describes the push for another review — this one led by the Freedom of Information Advisory Council — as an effort “keep FOIA healthy and alive and well.”

“It’s intended to be a periodic checkup to make sure no exemptions are broader than they need to be and are being interpreted correctly,” LeMunyon said. “We want to make sure those exemptions are still appropriate, not out of date and not inadvertently preventing people from getting government records they are entitled to.”

Both Rhyne and Virginia Press Association Executive Director Ginger Stanley both welcome LeMunyon’s effort to revisit the FOIA exemptions.

“There has been whittling away of the amount of information that is routinely released,” said Stanley, who wants the proposed review to take a close look at the exemptions surrounding law enforcement records that “keep a tremendous amount of public information from being released.”

Rhyne said she hopes the review examines the law’s exemption for working papers. And then, she said, there are several other exemptions — like those for certain apple producer sales records and subscriber data for a magazine published by the Department of Game and Inland Fisheries — “that just seem kind of odd and misplaced.”

LeMunyon said he’s not approaching the review with a particular exemption or set of exemptions in mind. The details of the study’s methods have yet to be determined, and he hopes to complete the review by the end of 2015 in time to introduce any necessary legislation the next year. (The resolution specifies a Nov. 30, 2016 deadline for the completion of meetings related to the review and calls for related reports or legislation to be prepared in time for the beginning of the 2017 Regular Session of the General Assembly.)

By Casey McDermott, SPLC staff writer. Contact McDermott by email or at (703) 807-1904 ext. 127.