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April 27, 2001
Mr. Patrick Kershaw
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-mails of March 21, 2001 and
April 11, 2001.
Dear Mr. Kershaw:
You have asked two separate questions under the Virginia Freedom
of Information Act (FOIA). First, you have asked for the Virginia
Freedom of Information Advisory Council ("the Council") to
investigate why the Fluvanna County government is not releasing
certain requested information under the Virginia Freedom of
Information Act (FOIA). Second, you ask about the application of
the attorney-client privilege exemption of FOIA to a document that
was distributed to a member of the public by one member of the
Board of Supervisors. You allege that this distribution, without
the authorization of the Board, negates the application of the
exemption, and thus the document should be open to the public. This
question was the subject of a previous opinion of the Council to
you, dated January 31, 2001.[fn1]
Section 2.1-346.3 of the Code of Virginia grants the Council
specific powers and duties. The Council has the authority to:
1. Furnish, upon request, advisory
opinions or guidelines, and other appropriate information regarding
the Freedom of Information Act (§ 2.1-340 et seq.) to any
person or agency of state or local government, in an expeditious
manner;
2. Conduct training seminars and
educational programs for the members and staff of public bodies and
other interested persons on the requirements of the Freedom of
Information Act;
3. Publish educational materials as
it deems appropriate on the provisions of the Freedom of
Information Act;
4. Request from any agency of state
or local government such assistance, services and information as
will enable the Council to effectively carry out its
responsibilities. Information provided to the Council by an agency
of state or local government shall not be released to any other
party unless authorized by such agency; and
5. Report annually on or before December 1 of each year on
its activities and findings regarding the Freedom of Information
Act, including recommendations for changes in the law, to the
Governor and the General Assembly.
The Council may only perform those functions specifically
delegated to it. As you can see from this list, the Council does
not have the statutory authority to investigate an alleged FOIA
violation.
In your email of March 21, 2001, you indicate that your local
government is not releasing information that you believe is
available under FOIA. You brought to our attention a FOIA lawsuit
settled in another county. According to a newspaper article that
you forwarded, the requestor involved in the lawsuit asked for "all
correspondence, contracts, agendas, notes, minutes, resolutions,
maps, plans, drawings, proposals and other records relating to" a
sewage plant study. Under the settlement agreement, the requestor
was allowed access to these documents. You assert that you have
made a similar type of request in your own county but have been
denied access to some of the relevant documents.
While I am not authorized to investigate your allegation of a
FOIA violation, I suggest that you renew your request for the
documents, bringing this recent FOIA lawsuit to the attention of
the records custodian. If this approach does not produce the
desired documents, and you still feel that your rights and
privileges under FOIA have been violated, § 2.1-346 sets forth
the remedy available to you under the law. To enforce your rights,
you may file a petition of mandamus or injunction, supported by
an affidavit showing good cause, addressed to the general district
court of the court of record of the county or city from which the
public body has been elected or appointed to serve and in which
such rights and privileges were so denied.
In addition to your request for an investigation, in an e-mail
dated April 11, 2001 you asked about the application of the
attorney-client privilege exemption found at subdivision A. 7 of
§ 2.1-342.01. You had previously asked a question about the
application of this exemption to a particular document, and I
responded in an Advisory Opinion.[fn2] You argue that because one
member of the Board released the document to an outside party,
without the consent of the full Board, the privilege has been
breached and the exemption no longer applies. I previously opined
in response to your question that the document was subject to the
attorney-client privilege, and as such the public body, or members
thereof, have the discretion to decide how much or how little of
the privileged information will be made available to the public.
This opinion is not affected by the new information you now provide
that indicates that one member of the Board decided to release the
document to an outside party without the consent of the Board as a
whole.
Thank you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria J.K. Everett
Executive Director
Footnotes:
1. Virginia Freedom of Information Advisory
Opinion 8 (2001).
2. Id.
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