December 12, 2000

Ms. Dawn Stovall
WVEC-TV
Norfolk, VA

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 correspondence of November 14, 2000.

Dear Ms. Stovall:

You have asked a question regarding access to information regarding complaints, settlement amounts, and fees paid to private attorneys by a public body, and whether this information falls under the mandatory disclosure requirements of the Virginia Freedom of Information Act (FOIA).

Specifically, you requested the total number of complaints filed against the most two recent fire chiefs, the number of grievances and complaints filed against the city's fire department regarding racial or sexual discrimination or promotions over the last five years, and the number and monetary amount of those complaints settled out of court. Additionally, you requested the number of those cases handled by private attorneys for the city, the amount paid to those attorneys, and the amount paid to a named attorney for a particular case cited in your request. The city responded by invoking the personnel records exemption available under FOIA in withholding records concerning individual grievances. Additionally, the city asserted that FOIA did not require a public body to summarize or compile existing records to comply with a request.

Subdivision A. 4. of § 2.1-342.01 of the Code of Virginia specifically allows public bodies to withhold personnel records containing information concerning identifiable individuals. Certainly complaints filed against a public employee would be considered part of his or her personnel file. In support of this assertion, an opinion of the Attorney General found that the reasons for suspension of a fire chief were a part of that individual's personnel file, and were thus confidential.[fn1] Similarly, the complaints filed against particular individuals would be exempt from public disclosure.

In addition to the information about specific individuals, you also requested the number of complaints filed over the last five years against the fire department concerning discrimination and promotion. While this request does not ask for information concerning an identifiable individual, "it is important to distinguish between a request for information and a request for documents."[fn2] The Attorney General has opined that FOIA applies to documents, and not information. Thus, while FOIA does require all public records to be open for inspection, subsection D of § 2.1-342 does not require a public body to create a record if it does not already exist. Unless the city or the fire department already maintains a general list of the number and type of complaints filed, they are under no obligation to compile such a record to answer your request. The provision does not prohibit a public body from compiling a new document, but instead leaves it to the body's discretion to decide whether or not to do so.

The remainder of your request asks for information concerning the monetary amount of complaints settled out of court and fees paid to private attorneys. As discussed above, the city may, but is not required to, compile such information into a single document in response to your request if it is not already summarized in the manner in which you requested it. However, even if not compiled in a single record, individual documents reflecting the amount paid in a settlement or to an attorney are public record. The Supreme Court of Virginia has held that accounting records relating to a settlement agreement are subject to public disclose.[fn3] In reaching this decision, the court specifically listed documents such as payment requests indicating the amount and to whom the check is to be payable, and computer sheets showing the amount paid out and recording the expenditure of public funds. In following the logic of the Supreme Court of Virginia decision, the amount paid to a private attorney for litigation defense would likewise be a matter of public record. It seems that the same types of documents as referenced in the settlement case would also be relevant in determining legal fees paid out of public funds.

As a general matter, you also inquired as to what you should do next to obtain these records, since they have already been denied by the public body in question. In light of this opinion, this office would recommend renewing your request before pursuing an alternative in court. Concerning your request for the number of grievances over the last five years, the city has already declined to create a new record. You may consider rewording your request to obtain the information relating to the various settlement amounts and fees paid to private attorneys, so as to request specific documents relating to the settlements and fees as opposed to asking for a list that the city may not maintain. Should a renewed request not result in the city providing the public records, FOIA sets forth provisions for legal remedies in § 2.1-346.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

Footnotes:

1. 1982-83 Op. Atty. Gen. Va. 726.

2. 1991 Op. Atty. Gen. Va. 9.

3. Lemond v. McElroy, 391 S.E. 2d 309, 239 Va. 515 (1990).