VIRGINIA FREEDOM OF INFORMATION ACT. UNEMPLOYMENT COMPENSATION HEARING. WHEN EMPLOYER IS ENTITLED TO TRANSCRIBED COPY OF TAPE RECORDINGS OF.

August 16, 1978

The Honorable Joseph V. Gartlan, Jr.
Member, Senate of Virginia

78-79 318

You have asked whether the Virginia Freedom of Information Act (the "Act") entitles an employer to a transcribed copy of the tape recordings of a Virginia Employment Commission hearing regarding a former employee's eligibility for unemployment compensation. You indicate that the employer was a party to the commission hearing and that the commission found the former employee eligible for unemployment benefits. No appeal was taken. No transcript has been made. It is also my understanding that the employer wishes a copy of a transcript of the hearing for purposes of a suit filed in another state against the employer by the former employee involving matters distinct from unemployment compensation.

The Act provides that the official records of any governmental body or agency in the State shall, except as otherwise specifically provided by law be available for inspection and copying by any citizen of this State. See § 2.1-342(a) of the Code of Virginia (1950), as amended. Commission hearings of unemployment compensation appeals are provided for in § 60.1-64. Section 60.1-65 requires that a complete record of such commission hearings be kept and that all testimony shall be recorded.¹ The commission's usual practice is to record its hearings on tape. Such hearing records would be "official records" of the commission within the meaning of § 2.1-341(b), and inspection and copying thereof would be required unless otherwise specifically provided by law. See § 2.1-342(a).

Section 60.1-65, however, specifically provides that the recorded testimony of commission hearings need not be transcribed unless a further appeal of the commission's decision is pending. Section 60.1-65 further provides that the commission may, in its discretion, furnish copies of the transcript of hearings to any party thereto. It is my conclusion that under § 60.1-65, the commission is not required to maintain the record of hearings in transcribed form unless an appeal from the commission decision is pending. If an appeal is pending and the commission does have a transcript of the commission hearing, the provisions of § 60.1-65 would apply, thereby leaving it to the discretion of the commission whether to furnish parties copies. The proviso that information shall not be published means that a party to the decision would not have a right to review the tapes. Testimony at the hearings would be "information furnished the Commission under the provisions of this chapter." The chapter deals mainly with testimony at hearings.

The proviso in § 2.1-342(a), "except as otherwise provided by law," incorporates by reference § 60.1-65. Reading § 2.1-342(a) and § 60.1-65 together, I conclude that the commission would not be required to furnish the employer with the transcript, but the commission would not be prohibited from furnishing a copy.

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Footnotes:

1. Section 60.1-65 provides: The manner in which disputed claims shall be presented, the reports thereon required from the claimant and from employers, and the conduct of hearings and appeals before any deputy, appeal tribunal or the Commission shall be in accordance with regulations prescribed by the Commission for determining the rights of the parties, whether or not such regulations conform to common law or statutory rules of evidence and other technical rules of procedure. A full and complete record shall be kept of all proceedings in connection with a disputed claim. All testimony at any hearing upon a disputed claim shall be recorded, but need not be transcribed unless the disputed claim is further appealed. Information furnished the Commission under the provisions of this chapter shall not be published or be open to public inspection, other than to public employees in the performance of their public duties, nor used in any judicial or administrative proceeding other than one arising out of the provisions of this title; provided, however, that the Commission may, in its discretion, furnish copies of the transcript of hearings to any party thereto."