The FOI Advisory Council issued 11 written advisory opinions
between July and November. The council was expected to issue an
additional opinion some time in December.
In AO-06-02, the council said a prearranged gathering of three
members of the Frederick County Board of Supervisors at the request
of a member of the Commonwealth Transportation Board to discuss the
extension of Route 37 was a meeting subject to FOIA. Because the
gathering included three or more members of a public body and
involved the discussion or transaction of public business, the
public body should have given notice.
In AO-07-02, the council wrestled with the issue of whether time
sheets are personnel records that may be withheld or records
related to "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" that must be disclosed. Citing a 1984 Attorney General
opinion, the council told Washington County Personnel Services
Manager Marsha Johnson that the timesheets she described in her
request for a council opinion fell into the former category.
AO-08-02 reviewed a series of questions related to a closed
meeting held by the Portsmouth City Council and the Portsmouth City
Manager about subsidizing the organizers of the Todi Music Festival
with proceeds from a local concert hall's surplus fund. The
council found most aspects about the meeting adequate, though the
council also said the motion to go into closed session was
deficient because they identified the purpose of the meetings and
made specific reference to the applicable exemption, but did not
identify the subject of the discussion.
In AO-09-02, the council confirmed that Ironbridge Acres, a
wholly owned for-profit subsidiary of the Hospital Authority of
Petersburg, is a public body subject to FOIA. So too is the Halifax
County Industrial Development Authority, the council said in
The council noted in AO-10-02 that lists of delinquent property
owners, identified by parcel, legal description and the
owner's name and mailing address, are subject to public
disclosure under the Tax Code. Public property books listing the
name, address and amount of property assessment for each parcel of
property are available under FOIA. The council also noted that the
requester could obtain the information on a computer disk if the
clerk stored the records electronically.
In AO-11-02, the council declined Wise County Clerk of Court
(and VCOG board member) Jack Kennedy's invitation to state a
position on whether clerks are bound to follow the U.S. Supreme
Court's line of cases on access to court records. The council
said the request was outside the scope and authority of the office.
The council also found that if a citizen requests a copy of a
digital database containing court documents held exclusively in
digital format, the court would be required to provide access to
those records, and may redact only those portions of the database
subject to an exemption.
The council opined in AO-12-02 that either the mayor or the city
manager of a locality could invoke the working papers exemption,
but not both. The council found that determining who a
locality's chief executive is depends on bylaws, charters
and/or a close examination of what types of duties the official
performs. The council also noted that "a locality may not
switch back and forth as to which public official may exercise the
In AO-13-02, the council found that some of the State Board of
Corrections records related to the procedures and practices
governing the process by which those designated by an inmate are
notified in case of serious illness, injury or death, would be
available under FOIA, but that some would be exempt if they
jeopardized prison security or safety.
The council reiterated in AO-14-02 that it does not have the
authority to decide whether a fee charged by an entity for public
records is reasonable. The council noted that a locality can ask
for a deposit if it anticipates that the cost of fulfilling the
request will exceed $200; however, "the public body would
have to refund the difference between the estimated costs and the
actual costs" if the final amount ended up to be less than
what was anticipated.
In AO-15-02, the council confirmed that nothing in FOIA
prohibits taking a "straw poll" or any other means of
reaching consensus during a closed meeting, provided that any
agreement "will not become effective until it is identified
at an open meeting, and voted on by the membership."
Local public bodies are absolutely prohibited from meeting
electronically, the council said in AO-16-02. While noting that the
public may participate electronically, "any meeting of a
local public body must be held where all of the participating
members are assembled in one physical location."