FOI Advisory Council Opinion AO-11-08


November 18, 2008

Alex Friedmann
Prison Legal News
Antioch, Tennessee

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 electronic mail of October 17, 2008.

Dear Mr. Friedmann:

You have asked whether records that are related to a public employee's activities and are maintained on a public agency's computer system are public records subject to the provisions of the Virginia Freedom of Information Act (FOIA). Specifically, you asked about records relating to a letter sent by a professor at George Mason University (the University), on University letterhead, signed as a professor of law, and sent to the United States Senate Judiciary Committee regarding a federal judicial nomination.1 You stated that when you initially requested documents related to this letter, your request was denied on the basis of attorney-client privilege. When you followed up by asking that the volume and subject matter of the withheld records be identified pursuant to subdivision B 1 of § 2.2-3704, you received a response asserting that any such records resulted from the professor's private activities on his own time and were not public records subject to disclosure under FOIA.

The general policy of FOIA expressed in § 2.2-3700 is to ensure ready access to public records in the custody of a public body or its officers and employees....The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. The definition of public record set forth in § 2.2-3701 includes all writings and recordings ... however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. There is no doubt that the University, as a public institution of higher education established by the General Assembly, is a public body, and by extension, there is no question that a University professor is a public employee.2 Therefore any records prepared or owned by, or in the possession of a University professor are public records under FOIA if they are in the transaction of public business. However, as stated in the first opinion published by this office, the phrase in the transaction of public business is not defined in FOIA. In examining a similar issue, that opinion stated that electronic mail messages between members of a public body that are not related to the transaction of public business are not public records under FOIA, and therefore are not subject to its mandatory disclosure requirements. The fact that electronic mail messages go through a government agency’s electronic mail database does not, by itself, make them public records. It is also the subject of those electronic mail messages that determines their status as public records.3

Following this opinion, the question here may be restated as whether records related to the letter in question are records in the transaction of the professor's public business as a University employee. That such records were prepared by the professor and maintained on University computers satisfies only part of the definition of public record. If, in addition, the letter was written in the transaction of public business, then it would be a public record, meeting the statutory definition in full. It then follows that other records prepared, owned, or possessed by the professor that are related to the letter would also be in the transaction of public business, and also would be considered public records subject to FOIA. It is therefore necessary to examine the letter and its subject matter in greater detail.

The first thing one notices when viewing the letter is that it appears to carry the imprimatur of the University: it was written on the professor's University letterhead, uses the University logo in oversized font, bears a University return address and contact information, and identifies the author as a "Professor of Law." These features convey an official appearance, and may be viewed as indicia that the letter was in fact written in the professor's capacity as a public employee of the University. However, the subject matter of the letter addresses points made in an article published online by a commercial news organization, regarding the conduct of a potential federal judicial nominee in his profession as a corporate attorney. The professor indicated within the letter itself that he wrote it in the interest of correcting perceived errors in the article, without having been solicited for his opinion, and without supporting or opposing the nomination. It does not appear from the subject matter or content of the letter itself that it was written as part of the professor's duties as a University employee, to be used as a teaching aid or otherwise in furtherance of his professional responsibilities at the University. As stated in the University's second response to your request, which you included with your message to this office, it is [the professor's] contention that the subject activities were on his own time. You may be aware that this University is not unique in permitting professors to pursue independent professional activities as a means of enhancing their instructional abilities. Given the content of the letter itself and this assertion by the University, it appears that the letter and records related to it were prepared outside the context of the professor's University employment, not for a public purpose, despite being on University letterhead. Therefore, under the facts described, it appears that the letter was not prepared by the professor in the transaction of public business, and that the requested records thus are not public records subject to FOIA.

However, this conclusion is incomplete without a cautionary note regarding the use of public resources by public officials and employees. The letter at issue was written on University letterhead by a University professor, which lends it the appearance of being a public record written by a public employee on behalf of a public body. Assuming there are related documents resident on one or more University computers used by the professor, those would carry a similar appearance of being public records by virtue of having been authored by a public employee using public resources. However, the definition of public record for FOIA purposes turns upon the content of a record, not its appearance. Just because records bear indicia of being public records, such as a public body's letterhead and return address, and being stored on a public body's computer, does not necessarily or automatically make the records subject to FOIA. The records must also be in the transaction of public business. While records such as the letter at issue here do not meet that second requirement of the definition, it is easy to see how they could be perceived as being public records because they satisfy the other parts of the definition, and they look like public records. Public officials and employees would be well advised to avoid such indicia when conducting private business, in order to avoid understandable confusion on the part of requesters who perceive the records to be public in nature and thus, subject to mandatory disclosure under FOIA.

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


Maria J.K. Everett
Executive Director

1. I note that your request was for records related to the letter, not for the letter itself, a copy of which you included with your electronic mail to this office.
2. See Virginia Code §§ 23-91.24 through 23-91.33 (regarding the establishment of the University as a corporate body under the General Assembly, its powers and duties, and other related statutory provisions).
3. Freedom of Information Advisory Opinion 1 (2000).