Concerns by Fairfax County officials helped convince state lawmakers to take a deeper look at proposed changes to Virginia’s Freedom of Information Act (FOIA) rules intended to make decision-making at the local-government level more transparent.
The measure patroned by state Sen. Adam Ebbin (D-39) had sailed through the Virginia General Assembly’s upper chamber unanimously on Jan. 31.
However, a subcommittee of the House Committee on General Laws voted 7-0 yesterday (Tuesday) to refer to the proposal to the Virginia Freedom of Information Advisory Council for review and comment, killing its prospects for the legislature’s 2025 session.
“I feel we should slow this down just a bit,” said Del. Marcus Simon (D-13), who sits on the procurement and open government subcommittee and chairs the FOIA advisory council.
“I like what you’re trying to do — I just don’t want to do it in a hurry,” he told Ebbin.
Perhaps the most significant change in the bill would have been a requirement that any measures voted on by elected bodies, such as county boards of supervisors, be posted in advance of the meeting.
Items added to the agenda after a meeting starts could “be considered and discussed” but not acted on until a later date, Ebbin explained at the subcommittee hearing.
The bill allowed exceptions for matters deemed “time-sensitive,” but that phrase sparked concerns.
That wording is “just too vague,” Jason Morgan, an attorney and parliamentarian, testified at the hearing. He suggested the vagueness could create confusion and opportunities for abuse by local officials.
Megan Rhyne, executive director of the Virginia Coalition for Open Government, told legislators the original wording had referred to “emergency” actions, but that word was seen as problematic for its negative connotations.
The Virginia Coalition for Open Government, a nonprofit that advocates for transparency and access to local and state government proceedings, worked with Ebbin and other organizations to develop and refine the legislation. In the end, the bill secured support from groups as varied as the Virginia Municipal League and the Virginia Press Association.
But after the measure passed the Senate, Fairfax and Arlington leaders voiced trepidation.
In Arlington County, officials took issue with provisions related to actions taken in executive sessions. They ultimately took a neutral position on the bill after Ebbin agreed to language changes that seemed to be a “workable solution,” Rhyne said.
Fairfax County government officials, however, opposed the legislation in its entirety. The county’s top lobbyist, Claudia Arko, told the House subcommittee that Ebbin had “listened to our concerns,” but the measure still made the Board of Supervisors uneasy.
Though “meant to be flexible,” the language could prove legally problematic for localities if any actions taken under its authority were later challenged in court, Arko said.
“It gives us a lot of concern about unintended consequences,” Arko said.
She pointed to a Virginia Supreme Court ruling in 2023 that invalidated Fairfax County’s massive zoning ordinance rewrite.
Justices ruled that county officials have violated sections of open-meetings laws during the adoption process, which took place in 2021 during the Covid crisis. The Fairfax County Board of Supervisors had to go back, hold new hearings and adopt the revisions again — a time-consuming process.
“There were other similar situations” in jurisdictions across Virginia, Arko noted, making local government leaders unsure about how their actions might later be interpreted by judges.
At the hearing, Arko asked that the state FOIA council look at the proposal and come back with recommendations. Rhyne told FFXnow she was frustrated by state legislators agreeing to the request.
“I am disappointed that this is going to the FOIA Council, because opposition from Fairfax did not get raised until this past Friday after the bill went through the Senate unanimously,” Rhyne said. “Then, we addressed Arlington‘s concerns in the substitute, but they didn’t support the bill. I wish we could have delivered some protection against last-minute actions this year, instead of waiting another year during the FOIA Council study.”
