Recent Advisory Opinions

The Freedom of Information Advisory Council issued 16 opinions since the publication of the July 2004 NEWS.

In late August, the council responded to an inquiry made by Robert Nawrocki of the Library of Virginia about whether the working papers exemption extended past a governor’s term. The council concluded in AO-17-04 that the exemption does not expire unless the papers are disseminated or otherwise made public by the official to whom the exemption applied. “Absent such a release, a record created by or for one of the named officials [in the exemption] for his personal or deliberative use retains the characterization of a working paper. ”

Construing the working papers exemption in AO-08-04 in a different context, the council determined that the master plan submitted to the Roanoke Redevelopment and Housing Authority for a high-tech business park was not exempt as the working papers of the director. The plan was submitted to the authority, and the director came into possession of the plan through the day-to-day operation of the authority; the plan was not prepared for the director’s personal, deliberative use.

The council addressed another request for records from a redevelopment authority in AO-14-04. There, a requester sought the names, addresses and payments made by the Suffolk Redevelopment and Housing Authority to landlords participating in federally subsidized Section 8 housing programs. The authority said federal law prohibited the records’ release, but the council found that the federal law protected records related to “participants” only, and landlords did not fall under the definition of “participants.”

The council faulted the Prince William school district for failing to cite a specific exemption in its denial of records to a requester in AO-09-04. In response to a request for records relating to the district’s new plan for employee and visitor identification badges, the district referred to House Bill 2621, which eventually became a FOIA exemption for school safety audit data. Though the school district’s response was inappropriate (FOIA requires reference to the specific exemption being claimed), the council found the exemption would not apply even if properly invoked. The exemption was meant to apply only to very specific portions of safety audits, not to the entire report itself.

In AO-10-04, the council discussed the availability of records related to the outside counsel the City of Suffolk hired to defend a threatened lawsuit. Referring to its own past opinions, as well as one from the Attorney General, the council found that the attorney work-product exemption did not apply to billing statements; however, it was possible that other requested records could contain material that would be covered by the exemption.

The council examined statutes outside FOIA in response to question about investigatory records of the Department of Health Professionals. A request for records from a completed disciplinary investigation was denied by DHP under the provisions of Title 54.1. The council noted in AO-11-04 that records made confidential by other code provisions are not to be released under FOIA. Under Title 54.1, the council concluded that all investigatory files were to be confidential, even files of completed investigations, and even when the files were requested by the subject of the file.

While finding in AO-12-04 that a meeting held by some members of the Chesterfield County Board of Directors and School Board was not a meeting (because the respective public bodies did not designate them as members of a committee), the council took the opportunity to note that “shifts” and “devices to evade” FOIA should be discouraged.

In AO-15-04, the council was asked about the propriety of another unorthodox meeting of school board members. Three members of the Manassas County School Board met with about 20 residents in a private home to discuss the impact of a new school. The council distinguished the Virginia Supreme Court’s decision in Beck v. Shelton, which held that three city council members’ attendance at a citizen forum did not constitute a meeting under FOIA. Unlike the Beck case, the council noted, the forum in this instance was organized specifically to discuss a public issue currently before the board.

In AO-13-04, the council stated that a father was entitled to receive the standardized evaluations used in his daughter’s audition for a public university’s theater department. The records were not barred from release by either FOIA or the Family Education Rights and Privacy Act. The notes the evaluators used for their personal use as memory aids, however, were protected from release under both statutes.

Faced with the interplay with FOIA of another federal law, the council decided in AO-21-04 that it lacked authority to determine whether the Americans With Disabilities Act required a public body to allow a disabled member to participate in meetings via telephone. FOIA prohibits electronic meetings for local public bodies, while the ADA requires that reasonable accommodations be made for disabled individuals.

The council addressed what it called a “grey area” in FOIA in AO-16-04. There, in the course of an e-mail dispute between a records requester and the associate superintendent of the Richmond School Board, the council suggested that the reason a particular record was not disclosed is because it did not exist. FOIA is silent as to how a records custodian is supposed to convey the fact of a non-existent record to a requester. The council recommended that custodians “clearly state when requested records do exist in order to avoid confusion and frustration on the part of the requester. ”

In finding that the Voter Registrar Office of the City of Newport News improperly refused to honor a oral request for records under FOIA until the request was put in writing, the council also refused the requester’s invitation to investigate the supposed ongoing FOIA violations committed by the registrar’s office. “This office does not have the statutory authority to investigate other government agencies nor does it have any enforcement authority,” the council wrote in AO-18-04.

The council decided in AO-19-04 that e-mail use between two members of a three-member local electoral board was not a violation of FOIA. Public body members don’t have to avoid e-mail to the extent the medium is used in the same way a letter is. Nonetheless, while not mandated by FOIA, the council stated that “it is a good idea to continue to implement a system such as the one you have described where all e-mails are copied to the registrar and kept on file for public inspection.” The council also advised public bodies to keep in mind the policy of FOIA — affording citizens every opportunity to witness the operations of government — when deciding to use e-mail with one another on substantive matters.

Pointing out that a committee that performs delegated functions or advises a full public body is itself a public body, the council found in AO-20-04 that the Washington County Service Authority’s customer dispute committee is a public body, and meetings held within its dispute process must be open to the public.

In late October, in AO-22-04, the council refused to second-guess a Norfolk circuit judge’s ruling that Hampton Roads Educational Telecommunications Association — otherwise known as WHRO — was not a public body subject to FOIA. The court said the public television and radio station received only 25 percent of its funding from the government and did not perform a delegated function. The council did add, however, that to the extent records exist of the various school boards who participate in HRETA relating to the transaction of public business, those records would be subject to disclosure under FOIA.

In AO-23-04, the council found that citizen applications for a vacant seat on a public body are exempt from disclosure as personnel records. The council also said that a public body could charge $6 for the release of the two-page record of the winning candidate if that cost represented the actual cost to the body of providing it.