March 13, 2001

Mr. Mike Davidson
Director, Community & Economic Development
Rustburg, 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 February 12, 2001.

Dear Mr. Davidson:

You have asked two questions concerning the Virginia Freedom of Information Act (FOIA). Your first question concerns FOIA exemptions relating to economic development prospects. Your second question asks whether FOIA applies to the Governor's Development Opportunity Fund.

You first asked if the Virginia Freedom of Information Advisory Council maintains a list of exemptions and specific Code of Virginia sections related to the release of information about economic development prospects. Although the Council does not presently compile such a list, there are three FOIA exemptions that address economic development. Subdivision A. 19. of § 2.1-342.01 of the Code of Virginia exempts from public disclosure [f]inancial statements not publicly available filed with applications for industrial development financings. Subdivision A. 22. of § 2.1-342.01 exempts certain confidential proprietary records, provided these records are voluntarily given by a private business pursuant to a promise of confidentiality by a local or regional economic development authority, and are used for business, trade or tourism development. This same subdivision also exempts records that are prepared by the Virginia Economic Development Partnership relating to businesses considering locating or expanding in Virginia. This portion of the exemption applies where competition or bargaining is involved; when the disclosure of such records would adversely affect the financial interest of the government unit involved. Finally, subdivision A. 5. of § 2.1-344 allows a closed meeting to be held to discuss a prospective business or industry or the expansion of an existing business or industry where no previous announcement has been made of the business' or industry's interest in locating or expanding its facilities in the community.

Your second question asks if the Governor's Development Opportunity Fund (the "Fund") is subject to FOIA. Section 2.1-51.6:5 sets forth the purpose of and requirements for the Fund. The Fund is to be used by the Governor to attract economic development prospects and secure the expansion of existing industry in the Commonwealth, and as such, records related to the Fund would be public. FOIA defines public records as those prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. Subdivision A. 6. of § 2.1-342.01 does exempt the Governor's working papers, defined as records prepared by or for the [Governor's] personal or deliberative use, and correspondence. Records of the Fund that fall under this definition would be exempt. However, records relating to the criteria used in awarding grants or making loans from the Fund, as required by subsection E of § 2.1-51.6:5, or biannual reports of the Fund, as required by subsection F of § 2.1-51.6:5, would be matters of public record.

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

Sincerely,

Maria J.K. Everett
Executive Director