VIRGINIA FREEDOM OF INFORMATION ACT, CLERKS, DEFINITIONS, PRIVACY ACT, PUBLIC OFFICERS, SALARIES

January 12, 1978

THE HONORABLE JERRY K. EMRICH
County Attorney of Arlington County

77-78 489

I am responding to your letter in which you inquire as follows:

"Arlington County has been requested, pursuant to the Freedom of Information Act, to provide access to records which show the specific salaries of identifiable employees. In addition, inquiry has also been made as to whether the financial disclosure forms that are filed in accordance with County Code § 27-9, copy enclosed, and which cover some employees and certain realty that is not covered by the Virginia Conflict of Interests Act may be publicly disseminated.

* * *

"Concerning the second inquiry, County Code § 27-9(2) requires the heads of County departments, and such other employees as the County Manager deems advisable, to file a report of financial interests with the County Manager.

"Furthermore, that County Code section requires, in § 27-9(1), that certain County personnel file with the Clerk of the Circuit Court a financial interests report.

"Your opinion is requested as to whether the disclosure of (1) the records which contain the specific salary information of identifiable County officers and employees, (2) the financial disclosure reports filed with the County Manager by County personnel pursuant to County Code § 27-9(2), and (3) the financial disclosure reports required to be filed pursuant to County Code § 27-9(1)(a)-(d) would violate the law."

I shall respond to your questions seriatiam.

The Virginia Freedom of Information (FOI) Act provides that official records maintained by public officers of the State and its political subdivisions shall be open to public inspection, unless otherwise provided by law. See §2. l 342(a), Code of Virginia (1950), as amended. Section 2. l 342(b)(3) of the FOI Act provides, however, that personnel records are not required to be disclosed to the public. The exemption from required disclosure provided for personnel records does not require that such records remain confidential, but permits such confidentiality at the discretion of the agency or public body which maintains such records. See Opinion to the Honorable Thomas A. Graves, President, College of William and Mary, dated December 3, 1973, and found in the Report of the Attorney General (1973-1974) at 454-456. Records revealing the salary of identifiable individuals are personnel records within the meaning of 2.1-342(b)(3). See Opinion to the Honorable Mary A. Marshall, Member, House of Delegates, dated March 22, 1977, and found in the Report of the Attorney General (1976-1977) at 318; see also Report of the Attorney General (1975-1976) at 416. You note correctly that these Opinions superseded the Opinion to the Honorable Robert E. Gillette, Commonwealth's Attorney for Nansemond County, dated June 16, 1970, found in the Report of the Attorney General (1969-1970) at 317. The Gillette Opinion stated that records revealing salaries of county employees could be examined by citizens upon request as a matter of right under the FOI Act. The later opinions cited above, however, reject that interpretation, holding that records of salaries of named individuals may be disclosed but disclosure is not required.

The Privacy Protection Act, in §2.1-380, paragraph 1, provides that records containing "personal information" shall be disseminated only if required or permitted by law, or in order to accomplish a proper purpose of the disseminating agency. Unless there is a prohibition against dissemination of salary records by virtue of some other statute, they may be disseminated; the Privacy Protection Act does not impose any general prohibition upon such dissemination. Records of individual county employee's salaries are "personal information" as defined in the Privacy Protection Act. See Marshall Opinion, supra. As stated previously, the FOI Act does not prohibit the release of salary records of individuals, but provides that governmental agencies may either release or withhold such records. Section 2.1-342(b)(3). Furthermore, I am aware of no other statute which prohibits disclosure of such salary records. Accordingly, since disclosure of salary records is permitted by the FOI Act, the County of Arlington may disclose salary records of individual employees without contravening the provisions of the Privacy Protection Act. Section 2.1-380, paragraph 1. I am, therefore, of the opinion that public disclosure of salaries of identifiable County employees would not violate applicable laws. Your first inquiry is, therefore, answered in the negative.

Your second question deals with records of financial interest disclosure which Arlington County Code §27-9(2) requires County department heads to file with the County Manager. You further indicate that the County Code §27-9(2) provides that the County Manager may, in his discretion, require the same financial interests disclosure of any employee in addition to those specifically named in the Code provision itself. The FOI Act, in §2.1-342(b)(4), provides that the memoranda, correspondence and working papers held or requested by the chief executive officer of any political subdivision are exempt from required disclosure. I conclude that the disclosure forms filed with the County Manager pursuant to §27-9(2) of the County Code are within the exemption provided by §2.1-342(b)(4). The County Manager, therefore, is not required to make such records available for public inspection, but he may do so in his discretion. Section 2.1-342(b)(4).

The information contained in such financial interests disclosure forms is clearly "personal information" as defined in the Privacy Protection Act. Section 2.1-379, paragraph 2. As indicated, the Privacy Protection Act does not generally prohibit the dissemination of information. Rather, the Act requires that if personal information is disseminated certain procedural steps be taken, all for the purpose of ensuring that the "data subjects" can: (1) check the accuracy of such information, and (2) know where or to what sources such [sic] information was disseminated. Section 2.1-382A, paragraphs 3-5. Information which can be disseminated is "only that personal information permitted or required by law to be so ... disseminated, or necessary to accomplish a proper purpose of the agency." Section 2.1-380, paragraph 1. The FOI Act requires certain records to be made public. Certain records, including the disclosure forms referred to in your second inquiry, are exempted from required disclosure. Even those records exempt from required disclosure under the FOI Act, as I have stated above, however, may be or are permitted to be disclosed; they are not prohibited from being disclosed. I am of the opinion that § 2.1-380, paragraph 1, recognizes the implicit authority of the FOI Act that exempted records are permitted to be disclosed. Since neither the FOI Act nor any other statute of which I am aware prohibits disclosure of the records filed with the County Manager, the Privacy Protection Act does not impose any prohibition on their dissemination. Section 2.1-380, paragraph 1. I, therefore, am of the opinion that, although not required by law, the release of such records to the public would not be in violation of applicable laws. Your second inquiry is answered in the negative.

Your third inquiry concerns financial interests disclosure forms filed with the Clerk of the Circuit Court by the County Manager, County Real Estate Assessor, and Board of Supervisors members pursuant to §27-9(1) of the County Code. Such records would be official records of the Court subject to required public disclosure under provisions of the FOI Act unless otherwise provided by law. Sections 2.1-341(b) and 2.1-342(a). I do not find any of the exemptions provided in the FOI Act, §2.1-342(b)(1)-(6), applicable to such records. Further, §17-43 of the Code requires that all records of the clerks of courts of record shall be available for public inspection. The Privacy Protection Act would not prohibit disclosure of such records since they are required to be disclosed under §17-43 and the FOI Act. Section 2.1-380, paragraph 1. Accordingly, I am of the opinion that the financial interests disclosure records filed with the Clerk of the Circuit Court under County Code §27-9(1) are required to be open to public inspection and that their public disclosure would not be in violation of applicable laws. Your third inquiry, therefore, is also answered in the negative.