The Virginia General Assembly Studies the Public Records Act and the State Depository Program
by Mary S. Clark
The Joint Subcommittee to Study the Public Records Act was created by the General Assembly of Virginia with the passage of House Joint Resolution 6 (2004). The study had three primary foci: examine the Virginia Public Records Act and the extension of its scope to provide and assign authority to establish and maintain guidelines or regulations for the creation, transfer, and archival preservation of electronic state records and publications; provide and assign authority to establish and maintain procedures for the official authentication of e-records and documents; and establish a means to identify, describe, receive, and manage discrete electronic government information. With only eight meetings of the full subcommittee authorized during the two-year study created by HJ 6, it was quickly apparent that interested parties must be willing to work quickly and focus their efforts to create much-needed changes in existing laws. Additionally, numerous stakeholders would need to be involved to be sure that the "law of unintended consequences" would not be the final result of the joint subcommittee's work.
Early meetings of the joint subcommittee, chaired by Delegate Kirkland Cox of Colonial Heights, provided the membership with an overview of the current laws governing public records and government publications. By the completion of the first meeting of the joint subcommittee, it was clear that there were two distinct issues that would need to be addressed: the Public Records Act itself, and the depository program for Virginia government publications. Additional meetings focused on educating the joint subcommittee about current issues in records management and public access to government information, particularly the challenges posed by electronic records and publications. The subcommittee quickly understood the importance of maintaining electronic records and publications and embraced the need for specific changes to the Code of Virginia that would strengthen both the records management and depository library programs in the Commonwealth.
At a meeting in April 2005, the Joint Subcommittee Studying the Public Records Act focused on the State Documents Depository Program. Lisa Wallmeyer, Division of Legislative Services, provided background on why the depository program was being studied and on the work of the joint subcommittee so far. The subcommittee received a summary of how the depository program currently works, focusing on how the Library of Virginia collects, catalogs, distributes, preserves, and makes available to the public Virginia government publications. Alan Zoellner, Government Information Librarian at the College of William and Mary and 2004 chair of the Public Documents Forum of the Virginia Library Association, spoke eloquently about the continued need for the program and offered a possible suggestion for the preservation of electronic publications, particularly serials.
Wallmeyer then outlined fifteen points that could be addressed by the joint subcommittee. These points were based on several conversations with Library of Virginia staff and compiled in consultation with Subcommittee Chairman Cox. The joint subcommittee had the option to agree or disagree on the points or refer them for further consideration to a work group studying the State Documents Depository Program (the work group was made up of members of the joint subcommittee, and included Delegate Ryan McDougle, Valerie Jean Mayo of the Library of Virginia Board, Robert Nawrocki and Conley Edwards of the Library of Virginia, and William Miller of the Division of Legislative Automated Systems). The joint subcommittee quickly agreed on two points: that current law concerning the depository program should be consolidated in the code under a specific act, and that this newly created act would include specific policy language supporting government information as a public good. Subsequent meetings distilled the fifteen points even further, to three manageable issues. Those included the definition of a publication for the purpose of the Depository Act; whether the Library of Virginia should use the Administrative Process Act to create regulations for the program or rely on guidelines promulgated by the library board; and whether to recodify a provision in the current code requiring cities and towns (but not counties) to provide publications to the library. An informal group of stakeholders gathered to discuss these issues prior to the work group meeting. They included subcommittee counsel Lisa Wallmeyer; Barbie Selby and Elizabeth Marguitti of the University of Virginia; Renee Bosman of Virginia Commonwealth University; and Conley Edwards, Kip Campbell, and myself from the Library of Virginia. The formal work group meeting that followed a few weeks later was attended by additional stakeholders, including representatives from the Coalition on Open Government, the Virginia Association of Counties, the Virginia Press Association, and records managers from state agencies and localities. The results of these sessions led to the creation of proposed legislation to be known as the State Publications Depository Act, which was "adopted in concept" by the full subcommittee in August 2005. The legislation should be introduced in the 2006 session of the General Assembly.
Work continues on the Public Records Act. Public meetings and work group sessions are still being held, with only two full joint subcommittee meetings left before the study ends. Many issues are still under consideration. Meetings are widely advertised on listservs and the General Assembly website. While the revisions to the Public Records Act are more complicated, there are many similarities in the issues. The review of the act has included clarifying definitions of electronic records. Care has also been taken to bring the Public Records Act into agreement with language in the Freedom of Information Act and Personal Information Privacy Act. Other issues that are being studied and clarified include codifying ownership of public records (either the creator or the Library of Virginia upon transfer) and clarifying that ownership is not based on where a record resides (trusted third party housing, for instance). Additional study has been focused on the authenticity of copies and means of enforcement.
Mary S. Clark is Director of the State and Federal Documents Program at the Library of Virginia. She can be reached at MClark@lva.lib.va.us.