VIRGINIA FREEDOM OF INFORMATION ACT. RECORDS. EXEMPT FROM PUBLIC INSPECTION WHEN HELD BY CHIEF EXECUTIVE OFFICER OF COUNTY. NOT EXEMPT IF DISTRIBUTED BY HIM TO OTHERS.

February 15, 1983

The Honorable Thomas M. Moncure, Jr.
Member, House of Delegates

82-83 724

This is in reply to your letter of February 15, 1983, requesting an Opinion regarding the Virginia Freedom of Information Act, §§2.1-340 through 2.1-346.1 of the Code of Virginia (the "Act"). You have asked the following:

"Whether or not a County can deny access to a draft management letter related to an audit of the County."

Section 2.1-342(a) provides in pertinent part:

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

This Office has previously held that draft architectural reports and analyses were deemed to be "official records" for the purposes of the Act.¹ Likewise, I am of the opinion that the draft management letter to which you refer is also an "official record" for the purposes of the Act.

Because the Act requires that all official records shall be open to [TEXT MISSING] determination must be made if there are any specific exemptions either under the Act or elsewhere in the Code which apply to the record in question. Section 2.1-342(b)(4) provides:

"(b) The following records are excluded from the provisions of this chapter: *** (4) Memoranda, working papers and correspondence held or requested by...[the] chief executive officer of any political subdivision of the Commonwealth...."

If the draft management letter is held by the chief executive officer of the county, it would be exempt from mandatory disclosure under the Act. This exemption, however, does not apply to similar records held by others,² and once the chief executive officer of the county disseminates any records held by him, those records lose the exemption accorded by §2.1-342(b)(4).

I am unaware of any other provision of law which would exempt the draft management letter from the mandatory disclosure provisions of the Act.³

I am, accordingly, of the opinion that if the draft management letter is held by the chief executive officer of the county, it would be exempt from mandatory disclosure pursuant to §2.1-342(b)(4). If, however, the letter has been disseminated, it would lose the exemption and would be subject to mandatory disclosure under the Act.

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Footnotes:

1See Opinion to the Honorable Douglas K. Baumgardner, Commonwealth's Attorney for the County of Rappahannock, dated October 21, 1982.

2 See 1976-1977 Report of the Attorney General at 315 and 317.

3 I have not seen the management letter and am not\jscope or content. I assume it does not relate solely to one employee, nor to criminal charges, so as to be considered a personnel record, or a criminal investigation. If so, the letter would not be subject to mandatory disclosure.