February 13, 2001

Ms. Debbie Northedge
Waynesboro, 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 e-mail of January 26, 2001.

Dear Ms. Northedge:

You have asked whether you may access audit information from the Virginia Employment Commission (VEC) under the Virginia Freedom of Information Act (FOIA). You indicate that you are currently awaiting a hearing on your claim for unemployment compensation, and some question remains as to whether you were an employee or an independent contractor with your prior employer. You state that VEC is also conducting an audit of your prior employer in order to determine if the employer properly reported the wage earnings of its employees. You believe that the outcome of the audit will have a bearing on the outcome of your hearing, and thus you would like to obtain documents relating to VEC's conclusions in the audit.

Subsection A of § 2.1-342 of the Code of Virginia provides that all records of public bodies are open for public inspection and copying [e]xcept as otherwise specifically provided by law. There are no exemptions within the text of FOIA that would apply to the type of documents you have requested. However, subsection A of § 60.2-114, in Title 60.2 of the Code addressing unemployment compensation, requires VEC to keep information received from employers in the course of carrying out its administrative duties confidential, and states that [i]nformation thus obtained shall not be published or be open to public inspection. The Virginia Employment Commission conducts audits of employers as part of its administrative duties to ensure that employers report the earnings of its employees accurately, and thus such documents would not be available under FOIA. In addition, unlike many of the exemptions set forth in FOIA, which are discretionary in nature, the exemption for withholding the VEC records from public access is mandatory. The penalty for any member or employee of VEC who violates § 60.2-114 is a Class 2 misdemeanor.

You indicate that you requested these documents in anticipation that they would be relevant to your hearing. Subsection A of § 60.2-114 contemplates and provides for such a situation. It states that any claimant at a hearing before an appeal tribunal or the Commission shall be supplied with information from such records to the extent necessary for the proper presentation of his claim. Thus, if any portion of VEC's audit with regard to whether your former employer properly reported your wage earnings is necessary for you to present your claim at the hearing, VEC will provide you with that relevant information. In addition, the hearing officer presiding over your hearing would have access to the audit information and could enter relevant portions into the record of the hearing as he deemed appropriate.

In conclusion, the VEC audit information that you requested is not subject to public inspection. However, if VEC finds that the information is relevant to your hearing, it will provide you the information necessary for you to present your claim.

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

Sincerely,

Maria J.K. Everett
Executive Director