FOI Advisory Council Opinion AO-07-04


April 7 , 2004

Mr. John R. Roberts, Esq., County Attorney
Ms. Melissa Spring, Esq., Assistant County Attorney
Leesburg, Virginia

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 February 10, 2004, and February 11, 2004.

Dear Mr. Roberts and Ms. Spring:

You have asked a question concerning the application of the records exemption for personal information furnished to a public body for the purpose of receiving electronic mail ("e-mail") from the public body under the Virginia Freedom of Information Act (FOIA).

Subdivision A 78 of § 2.2-3705 of the Code of Virginia allows a public body to withhold, in its discretion:

Personal information, as defined in § 2.2-3801, including electronic mail addresses, furnished to a public body for the purposes of receiving electronic mail from the public body, provided that the electronic mail recipient has requested that the public body not disclose such information. However, access shall not be denied to the person who is the subject of the record.

You indicate that several members of the Loudon County Board of Supervisors send out "e-newsletters" to update constituents regarding issues and events in their particular district, as well as countywide events. You indicate that these e-newsletters are not sent on behalf of the Board of Supervisors or the County as a whole, but are sent by individual members on their own initiative. You ask if the exemption cited above would allow a member of the Board of Supervisors to withhold a citizen's e-mail address if it was furnished to that member for the purpose of receiving e-mail from that individual member. You further ask if the answer to this question would change if the citizen sent his request to receive the e-mails to the supervisor's nongovernment, private e-mail address.

The policy of FOIA at subsection A of § 2.2-3700 ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers or employees. This policy further requires that the provisions of FOIA be liberally construed, and that [a]ny exemption from public access to records or meetings shall be narrowly construed. At issue is whether the language in the exemption that allows personal information to be withheld if furnished for the purpose of receiving e-mail from the public body also applies when the personal information is furnished to receive e-mail from an individual member of the public body.

Construing the exemption narrowly, as is required by law, the plain language appears to apply only to personal information furnished to receive e-mails from the public body as a whole. The language clearly refers to public bodies; one cannot construe this language more broadly to include its application to individual members of a public body. This is not to say that the exemption would not apply if the e-mails were sent from one public official's e-mail account on behalf of the Board of Supervisors as a whole. However, in the facts you present, members are sending the e-mails in their individual capacities, and not as representatives of the whole. When one elected official sends an e-mail to his constituents, it is akin to correspondence, and there is no general FOIA exemption for the correspondence of public officials. The exemption in question was created to address a situation where government -- the public body as a whole -- sends e-mails or electronic newsletters to citizens to provide them with information about upcoming meetings, current issues facing the government, or other matters of public business. In this light, the e-mails contemplated by the exemption are more akin to receipt of a subscription or a service from the public body rather than receipt of e-mail correspondence. As a subscription or a service, whether or not provided for compensation, the e-mails do not adopt the characteristics of individual correspondence because they are essentially sent from the government as a whole, instead of being sent by one individual to one or many constituents.

It is also important to note that this exemption does not allow all personal information provided to a public body to be withheld generally. It only applies if the information is provided for the narrow purpose of receiving e-mails from the public body and if the citizen providing such information requests that it not be disclosed. Both requirements must be met in order for the public body to invoke the exemption.

You also ask if the answer to your question would differ if a citizen sent his request to receive the e-mails from an individual member of the Board of Supervisors to the member's nongovernment, private e-mail address. FOIA defines a public records as all writings and recordings prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. As can be seen in this definition, whether or not a record is a public record for purposes of FOIA hinges on the content of the record, and whether or not it relates to public business. For the purposes of e-mail, it does not matter if the record is composed or received on a private computer or at a private e-mail account -- if it is sent or received by a public official, such as a member of the Board of Supervisors, and concerns public business, then it is a public record under FOIA. Therefore, for purposes of your question, the decision as to whether an e-mail sent by a citizen to a member of the Board of Supervisors must be disclosed does not change if the e-mail was sent to the member's private e-mail address instead of his government e-mail address.

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


Maria J.K. Everett
Executive Director