Policy 6-2014

Dear Ms. Womack:

The Virginia Coalition for Open Government writes to comment on the updated FOIA compliance manuals for the Department of Environmental Quality, the Air Pollution Control Board, the State Water Control Board and the Virginia Waste Management Board.

It appears the same policy applies to all four entities and the policy addresses two legislative changes, effective July 1, 2021, one affecting 2.2-3705.1(10) and the other affecting 2.2-3705.6(29). VCOG’s comments are directed solely to the former.

Section 2.2-3705.1(10) exempts the personal contact of individuals who have signed up to receive communications from a public body. It was altered in 2021 to extend the exemption to members of a public body (e.g., commissioners on a board). It was also altered in 2021 to change the records from being presumed open unless the individual providing contact information opted out, to now being presumed closed unless the individual has opted in.

VCOG wishes to confirm that the agencies listed above will continue to adhere to the purpose of the law — which is to shield contact information only when citizens have provided it in order to receive one-way announcements, news and other materials from the agency or board members — and not to interpret or apply it as a general exemption for contact information that is shared when a citizen is engaged in direct back-and-forth communication with board members or agency staff.

We wish to suggest the following amended language to the “Non-disclosure of Personal Contact Information” statement on page 8:

The agency withholds individual personal contact information if the individual has provided his or her personal contact information for the sole purpose of receiving electronic mail news and announcements sent to a general audience from the agency. Personal contact information is defined as an individual’s home and/or business physical address, email address, telephone number and/or comparable number assigned to an electronic device.

Thank you for your time and attention, and for your service to the Commonwealth.

Megan Rhyne

Dear Ms. Womack:

I am submitting these comments on behalf of the Virginia Chapter of the Sierra Club.

As noted in the current Manual for Processing Information Requests pursuant to the Virginia Freedom of Information Act, the purpose of the Virginia Freedom of Information Act (“FOIA”) is to promote access to agency information and improve transparency and accountability for agency operations and decisions. With this purpose in mind, we offer the following comments on the proposed revised Manual that is the subject of your request for comments. 

It is our understanding that the Manual applies not only to the Department of Environmental Quality (“DEQ”), but also to the Boards that are part of DEQ: the Air Pollution Control Board, the State Water Control Board and the Waste Management Board; these comments are intended to apply to the Manual as it pertains to all of these entities.  References below to Titles and page numbers are to Section Titles and page numbers in the draft Manual. 

1. Suggested Changes to Section entitled “Exclusions related proprietary records and trade secrets,” preface to list of records eligible for withholding, page 10.  Please make the following clarifying change to the language:

“Once the records in DEQ possession have been designated and confirmed by DEQ as qualifying for the trade secret or proprietary information exclusion, the following records will be withheld from release.”

2. Suggested Change to Section entitled “Requirements for Making a Request,” Step 2, 3^rd sentence, page 6.   Please clarify that DEQ will notify the requester if a request is deemed not complete within the statutorily required five business day period. The modified language would read as follows:

“However, if for any reason the request is not deemed complete, the agency will notify the requester for clarification within that five business day period.”

3. Suggested Change to Section entitled “Non-disclosure of Personal Contact Information,” 1^st sentence, page 8:  The statute is intended to exempt from FOIA disclosure the personal contact information of individuals (including Board members) that is provided to enable the individuals to receive email and similar one-way “push” communications from the Department.  The language of the proposed Guidance is unduly broad for that purpose.   Proposed modified language that would better reflect the statutory intent might read as follows:

“The agency withholds individual personal contact information if the individual has provided his or her personal contact information for the sole purpose of receiving electronic mail from the agency.”

Thank you for your attention and for all you do every day.

Judy Gayer