FOI Advisory Council Opinion AO-13-02


October 31, 2002

Ms. Rebecca K. Glenburg
Legal Director
American Civil Liberties Union of Virginia
Richmond, 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 letter of September 18, 2002.

Dear Ms. Glenburg:

You have asked a question about access to prison records under the Virginia Freedom of Information Act (FOIA). You indicate that you requested from various state prisons run by the Virginia Department of Corrections ("DOC") the "procedures and practices governing the process by which those designated by an inmate are notified in case of serious illness, injury or death." In response to your request, each prison responded that the requested records were security procedures exempt from disclosure by subdivision A69 of § 2.2-3705 of the Code of Virginia. You ask whether the requested documents properly fall with the exemption, and if so, if the prisons are required to provide redacted copies of the records.

Subsection A of § 2.2-3704 provides that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth. The statement of policy, found at subsection B of § 2.2-3700, states that the provisions of FOIA shall be liberally construed to promote an increased awareness by all persons of governmental activities ... [a]ny exemption from public access to records or meetings shall be narrowly construed. Subdivision B3 of § 2.2-3704 further states that if an exemption applies to only part of a record, the public body may delete or excise only that portion of the record to which an exemption applies and shall release the remainder of the record.

Subdivision A69 of § 2.2-3705, cited by the prisons, allows a public body to withhold the following information:

Engineering and architectural drawings, operational, procedural, tactical planning or training manuals, or staff meeting minutes or other records, the disclosure or which would reveal surveillance techniques, personnel deployments, alarm or security systems or technologies, or operational and transportation plans or protocols, to the extent such disclosure would jeopardize the security of any governmental facility, building or structure or the safety of persons using such facility, building or structure.

Section 58.1-5 allows the State Board of Corrections to develop rules and regulations to assist DOC in carrying out its various functions and duties. One such regulation in the Virginia Administrative Code requires that DOC establish written procedures and practices specifying and governing the process by which those individuals designated by an inmate are notified in case of serious illness, injury, or death, and the actions to be taken in the event of an inmate death, including notification of the medical examiner, management of records, and transportation of the body.1

Interpreting the FOIA exemption narrowly, as is required by law, it would appear that only some of the procedures required to be developed by the above-mentioned regulation would fall under the exemption at subdivision A69 of § 2.2-3705. For example, a procedure indicating which exit would be used to transport the body of an inmate or which personnel would be called off of their regular post to respond to an inmate death might jeopardize the security of the prison. However, it is less clear how a procedure governing when or how a person designated by an inmate is notified in case of serious illness or death might jeopardize security or safety. The exemption at issue does not exempt all procedural records or manuals solely because they may be related to security issues. Instead, the exemption only applies to those records whose disclosure would jeopardize the security of the building or the safety of the persons using the building.

As noted above, if a record contains both exempt and non-exempt information, the public body may redact only the exempt information and must produce the remainder of the document. In this case, DOC could redact information rising to the level of jeopardy set forth in the exemption. For example, DOC might redact out information regarding how the body of a deceased inmate would be transported out of the facility. However, information that does not affect the security or safety of the building or individuals, such as when an inmate's designee is notified of serious illness, does not rise to the level of jeopardy set forth in the exemption. FOIA would require the release of this part of the record, even if other information in the same record may be redacted.

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


Maria J.K. Everett
Executive Director

1. 6 VAC 15-31-290.