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October 31, 2002
Ms. Rebecca K. Glenburg
Legal Director
American Civil Liberties Union of Virginia
Richmond, Virginia
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 letter of September 18, 2002.
Dear Ms. Glenburg:
You have asked a question about access to prison records under
the Virginia Freedom of Information Act (FOIA). You indicate that
you requested from various state prisons run by the Virginia
Department of Corrections ("DOC") the "procedures and practices
governing the process by which those designated by an inmate are
notified in case of serious illness, injury or death." In response
to your request, each prison responded that the requested records
were security procedures exempt from disclosure by subdivision A69
of § 2.2-3705 of the Code of Virginia. You ask whether the
requested documents properly fall with the exemption, and if so, if
the prisons are required to provide redacted copies of the
records.
Subsection A of § 2.2-3704 provides that [e]xcept as
otherwise specifically provided by law, all public records shall be
open to inspection and copying by any citizens of the
Commonwealth. The statement of policy, found at subsection B of
§ 2.2-3700, states that the provisions of FOIA shall be
liberally construed to promote an increased awareness by all
persons of governmental activities ... [a]ny exemption from public
access to records or meetings shall be narrowly construed.
Subdivision B3 of § 2.2-3704 further states that if an
exemption applies to only part of a record, the public body may
delete or excise only that portion of the record to which an
exemption applies and shall release the remainder of the
record.
Subdivision A69 of § 2.2-3705, cited by the prisons, allows
a public body to withhold the following information:
Engineering and architectural
drawings, operational, procedural, tactical planning or training
manuals, or staff meeting minutes or other records, the disclosure
or which would reveal surveillance techniques, personnel
deployments, alarm or security systems or technologies, or
operational and transportation plans or protocols, to the extent
such disclosure would jeopardize the security of any governmental
facility, building or structure or the safety of persons using such
facility, building or structure.
Section 58.1-5 allows the State Board of Corrections to develop
rules and regulations to assist DOC in carrying out its various
functions and duties. One such regulation in the Virginia
Administrative Code requires that DOC establish written procedures
and practices specifying and governing the process by which
those individuals designated by an inmate are notified in case of
serious illness, injury, or death, and the actions to be
taken in the event of an inmate death, including notification of
the medical examiner, management of records, and transportation of
the body.1
Interpreting the FOIA exemption narrowly, as is required by law,
it would appear that only some of the procedures required to be
developed by the above-mentioned regulation would fall under the
exemption at subdivision A69 of § 2.2-3705. For example, a
procedure indicating which exit would be used to transport the body
of an inmate or which personnel would be called off of their
regular post to respond to an inmate death might jeopardize the
security of the prison. However, it is less clear how a procedure
governing when or how a person designated by an inmate is notified
in case of serious illness or death might jeopardize security or
safety. The exemption at issue does not exempt all procedural
records or manuals solely because they may be related to security
issues. Instead, the exemption only applies to those records whose
disclosure would jeopardize the security of the building or the
safety of the persons using the building.
As noted above, if a record contains both exempt and non-exempt
information, the public body may redact only the exempt information
and must produce the remainder of the document. In this case, DOC
could redact information rising to the level of jeopardy set forth
in the exemption. For example, DOC might redact out information
regarding how the body of a deceased inmate would be transported
out of the facility. However, information that does not affect the
security or safety of the building or individuals, such as when an
inmate's designee is notified of serious illness, does not rise to
the level of jeopardy set forth in the exemption. FOIA would
require the release of this part of the record, even if other
information in the same record may be redacted.
Thank you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1. 6 VAC 15-31-290.
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