VIRGINIA FREEDOM OF INFORMATION ACT

January 9, 1978

THE HONORABLE C. RICHARD CRANWELL
Member, House of Delegates

77-78 487

I am responding to your recent letter in which you submit the following inquiry:

"Section 32-353.26 of the Code of Virginia makes it unlawful for any person to permit an inspection of, or disclosure of information contained in vital statistics records. It appears that this section became law by Chapter 451 [1960] Acts of Assembly.

"You will note that this was prior to the enactment of the Virginia Freedom of Information Act, namely Chapter 479 [1968] Acts of Assembly, and particularly therein §2.1-342.

"Please advise me as to your opinion, as to whether or not birth records would be a matter of public information under §2.1-342 of the Code as being a subsequent enactment to §32-353.26."

The Freedom of Information Act, specifically, §2.1-342(a), Code of Virginia (1950), as amended, provides that official records of State and local govern mental departments and agencies shall be open to public inspection and copying as follows:

"Except as otherwise specifically provided by law, all official records shall be open to inspection and copying by any citizens of this State during the regular office hours of the custodian of such records. (Emphasis added.)

The general requirement of 2.1-342(a), that official records be open to public inspection and copying, is, therefore, qualified so as to take into account other statutory provisions which may limit or prohibit public disclosure of specified records. See Opinion to the Honorable J. Howard Bryant, Director, Division of Automated Data Processing, dated October 15, 1974, and found in Report of the Attorney General (1974-1975) at 571, 572.

Section 32-353.26(a) of the Code deals specifically with public access to records of vital statistics, which includes birth records. See §32.353.4(a).

Section 32-353.26 provides in relevant part:

"(a) To protect the integrity of vital statistics records, to insure their proper use, and to insure the efficient and proper administration of the vital statistics system, it shall be unlawful for any person to permit inspection of, or to disclose information contained in vital statistics records, or to copy or issue a copy of all or part of any such record except as authorized by regulation of the State Board of Health or when so ordered by a court of competent jurisdiction."

The specific prohibition against public disclosure of birth records found in §32-353.26(a) is, in my view, within the intendment of the language "except as otherwise provided by law" which modifies the disclosure requirement of §2.1-342(a). Accordingly, I am of the opinion that birth records are not subject to requirement of public disclosure under the Freedom of Information Act. I would, however, call to your attention the provisions of §32-353.27 which provide for limited access to vital statistics records, including birth records. This statute provides that the State Registrar of Vital Statistics shall, upon request, issue certified copies of any certificate or record in his custody.