January 16, 2002

Mr. Albert C. Taylor
Pulaski, Virginia

Dear Mr. Taylor:

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 letter of November 30, 2001.

Dear Mr. Taylor:

You have asked whether the names of employees of a public body are releasable under the Virginia Freedom of Information Act (FOIA). You stated you made a FOIA request for the names, positions held, salary, and any supplemental money paid to the employees of the local school board. You received the requested records, however, the school board declined to provide the names of the individual employees.

Subsection A of § 2.2-3704 of the Code of Virginia declares that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth. Unless a specific exemption applies to the record that you have described, it is subject to the mandatory provisions of FOIA. While salary information is a personnel record that could normally be withheld, subsection B of § 2.2-3705 specifically requires disclosure of records of the position, job classification, official salary or rate of pay of, and records of the allowances or reimbursements for expenses paid to any officer, official or employee of a public body. The Attorney General of Virginia has opined that a public body must create a list of employee names and salary information, which is an exception to the general rule under subsection D of § 2.2-3704 that the public body does not have to create a document under FOIA.¹ The names of the current employees are required to be released under FOIA with the salary information you have received.

You also inquired about whether a public body, under FOIA, must provide you with the names, positions held, salary, and any supplemental money paid to any retired employees of the school board who were subsequently reemployed by the school board (in this instance as high school coaches).

Generally, records relating to the retirement of identifiable individuals who are public employees are personnel records under FOIA and therefore are not subject to its mandatory disclosure requirements pursuant to subsection A. 4. of § 2.2-3705. However, subsection B of § 2.2-3705 requires the disclosure of salary information, including records of the position, job classification, official salary or rate of pay of, and records of the allowances or reimbursements for expenses paid. Reading those two sections together, FOIA allows a public body to withhold personnel records except that salary information of any officer, official or employee of a public body must be disclosed if requested.

To the extent the school board possesses a record that is responsive to your second request, it may in its discretion release this record even though it may contain information about an individual's retirement. This office has previously opined that, pursuant to subsection A of § 2.2-3705, the custodian of a record for which an exemption may be invoked may choose to release some or all of the record.² In this instance, the school board may properly withhold those portions of the requested record that relate to the retirement of a public employee, as a personnel record.

One final point needs to be made. A public body, pursuant to subsection D of § 2.2-3704, is not required to create a new record if the record does not already exist. However, if the school board elects to furnish you with a list identifying those individuals who retired from the school board who were subsequently rehired as coaches in the school system, it may abstract or summarize this information under such terms and conditions as agreed between you and the school board.³

In summary, the school board does not have to release records related to the retirement of public employees because they are personnel records. The school board also is not required to create a record that would be responsive to your specific request. However, FOIA clearly requires the release of records of position, job classification, official salary or rate of pay, and records of allowances or reimbursements for expenses paid.

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

Sincerely,

Maria J.K. Everett
Executive Director

Footnotes:

1. 1987-1988 Op. Atty. Gen. Va. 33; 1978-1979 Op. Atty. Gen. Va. 310.

2. AO-28 (2001).

3. Subsection D of § 2.2-3704.