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April 3, 2003
Mr. Michael Ravnitzky
American Lawyer Media
Washington, District of Columbia
The staff of the Freedom of
Information Advisory Council is authorized to issue advisory
opinions. The ensuing staff advisory opinion is based solely upon
the information presented in your e-mail of February 5, 2003.
Dear Mr. Ravnitzky:
You have asked whether a list of the names of lawyers admitted
to practice law in the Commonwealth of Virginia would be open for
public inspection and copying under the Virginia Freedom of
Information Act (FOIA). You indicate that you requested this list
from the Virginia State Bar (VSB), but were told that such lists
were only available to not-for-profit organizations that conduct
continuing legal education programs in Virginia.
Subsection A of § 2.2-3704 of the Code of Virginia states
that [e]xcept as otherwise specifically provided by law, all
public records shall be open to inspection and copying. Section
2.2-3701 defines a public record to include all writings and
recordings…prepared or owned by, or in the possession of a
public body or its officers, employees or agents in the transaction
of public business. The policy provisions of FOIA at subsection
B of § 2.2-3700 require that the provisions of FOIA be
liberally construed, and that any exemption from public access to
records or meetings shall be narrowly construed and no record shall
be withheld…unless specifically made exempt pursuant to this
chapter or other specific provision of law.
Title 54.1 of the Code of Virginia sets forth the provisions
relating to regulatory boards, including the regulation of
attorneys by the VSB at Subtitle IV (§ 54.1-3900 et seq.) By
way of background, VSB is an administrative agency of the Supreme
Court of Virginia charged with the regulation of the legal
profession in the Commonwealth. All persons licensed to practice
law in Virginia must belong to the VSB and comply with its
licensing requirements. Section 54.1-108 states that official
records of any board named in Title 54.1 shall be subject to FOIA,
but examination questions, papers, booklets and answer sheets,
applications for admission to examinations or for licensures and
scoring records on individual licensees or applicants, and records
of active investigations being conducted by any regulatory board
may be withheld.
In order to withhold a list of the names of people admitted to
practice law in the Commonwealth, a statute would need to
specifically exempt such a record. In response to your request, VSB
indicated that § 54.1-3918 only allowed a list of attorneys to
be released to a not-for-profit organization that conducted
continuing legal education programs. Section 54.1-3918 states:
When requested, copies of the
Virginia State Bar membership address list shall be made available
to Virginia professional legal organizations which operate not for
profit and which regularly conduct continuing legal education
programs in the Commonwealth. If specified by the requestor, the
list shall be made available in computer sorted zip code sequence
in a mailing label format suitable for bulk mailing. Lists shall be
provided by the Virginia State Bar on a cost recovery basis.
Each request for the mailing list
shall be made in writing by requesting organizations to the
Executive Director of the Virginia State Bar. Each request shall
state the date the list is needed by the requestor and each request
shall be postmarked no less than thirty days prior to such date.
The cost of mailing or shipping shall be borne by the
requestor.
As mentioned above, if a statute does not specifically exempt a
record from disclosure, it must be made available for public
inspection and copying under FOIA. The statute cited by the VSB
does not set forth an exemption; instead, it provides that when
not-for-profit organizations that conduct continuing legal
education programs request address lists of members of the VSB, the
records must be provided in a particular format and manner. Section
54.1-3918 does not state that records of members of the VSB shall
not be disclosed but to not-for-profit organizations that conduct
continuing legal education programs, and reading such language into
the section by implication would result in an improperly broad
interpretation of that section. Following FOIA's rules of
construction, and absent specific language indicating that records
may be withheld, an assertion that certain records must be provided
cannot be read conversely to reach the conclusion that other
records need not be provided. It appears that the VSB must provide
a list of the names of attorneys licensed to practice law in the
Commonwealth upon request, because there is no specific statutory
exemption that would allow such a record to be withheld.
Public policy also supports the position that a list of licensed
attorneys is a matter of public record. Section 54.1-100 states
that every person has the right to engage in any lawful profession,
trade or occupation, and that the Commonwealth cannot abridge
such rights except as a reasonable exercise of its police powers
when it is clearly found that such an abridgment is necessary for
the preservation of the health, safety and welfare of the
public. By including the practice of law as a regulated
profession, the General Assembly made the decision that it is in
the public's best interest to require licensure and regulation of
attorneys in the Commonwealth. To conclude that a list of attorneys
licensed to practice law is not a matter of public record runs
contrary to the public policy of licensing attorneys in the first
place. The public would not be well served if it could not access a
list of those the Commonwealth has deemed to be in good standing to
practice law, because the purpose of the licensing requirements is
to protect the public health, safety and welfare.
Thank you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria J.K. Everett
Executive Director
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