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
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
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
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.