June 18, 1976

County Attorney for Fairfax County

74-75 576

This is in reply to your recent letter wherein you pose two questions relating to the Virginia Freedom of Information Act:

"The [Fairfax County] Human Rights Commission in resolving complaints within its jurisdiction is faced with the question of whether complaints may be kept confidential until a hearing is begun to resolve the complaint or the person complained against waives confidentiality.

"Section 15D-6(B)(1) of the Fairfax County Code provides as follows: .... Every complaint shall be held in confidence by the Commission unless and until the complainant and the person complained against consent in writing to its being made public or a hearing is begun.

"My question is whether this provision conflicts with the Virginia Freedom of Information Act, §2.1-340 et seq., Va. Code Ann., wherein official records, as defined, are open to inspection by any citizen of the state."

The related question posed by the [Fairfax County] Tenant-Landlord Commission concerns the confidentiality of the identities of tenants submitting complaints on rent increases to the Commission staff. Under a proposed act of procedural guidelines by which this Commission would compile and publish rent increase data, the Commission would encode the names of complaining tenants in order to avoid the disclosure of their identities to individuals other than the Commission or its staff. It is unclear to me whether the proposed encoding would conflict with the Freedom of Information Act

With respect to the Tenant-Landlord Commission, you indicate that there is a County ordinance prohibiting disclosure of complaints which is similar to the above-quoted ordinance relating to the Human Rights Commission.

The Fairfax County Human Rights and Tenant-Landlord Commissions are continuing governmental entities established by Fairfax County and are, therefore, public bodies subject to the requirements of the Freedom of Information Act. See §§2.1-341(a) and 2.1-341(e), Code of Virginia (1950), as amended.

Section 2.1-342(a), which governs disclosure of records by governmental bodies, provides:

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

Complaints filed with the Human Rights Commission or the Tenant-Landlord Commission are clearly "official records" within the intendment of §2.1-341(b). In view of the explicit provisions of §2.1-342(a), such complaints must be open for public inspection unless specifically exempted by subsections (1)-(5) of §2.1-342(b) or other provisions of law. None of the exemptions set forth in §2.1-342(b) are applicable to complaints filed with either Commission.

The language of §2.1-342(a) referring to exceptions "otherwise specifically provided by law" does contemplate disclosure exemptions provided for by provisions of law apart from those set forth specifically in §2.1-342(b). Your letter recites the language of § 15D-6(B)(1) of the Fairfax County Code providing confidentiality to complaints filed with the Human Rights Commission and refers to a similar proviso relative to Tenant-Landlord Commission complaints. To interpret the above-quoted language of §2.1-342(a) as encompassing county ordinances which provide disclosure exemptions, would be subordinating a State statute to local legislation. Carried to its logical conclusion, such an interpretation would permit localities to exempt themselves totally from provisions of the Freedom of Information Act. This result would be wholly contrary to the obvious purpose and intent of the Act. In this instance there are no other exemptions specifically provided by State law. Thus, I am of the opinion that complaints filed with either the Human Rights Commission or the Tenant-Landlord Commission of Fairfax County are official records subject to the public disclosure requirements of §2.1-342(a).