Attorney General's Opinion 1983-84 #439


January 9, 1984

The Honorable Fred W. Walker, Director
Department of Conservation Economic Development

83-84 439

You have asked whether the Virginia Division of Tourism (the "Division") of the Department of Conservation and Economic Development may lawfully collect from Virginia travel attractions and maintain in confidence certain proprietary information. You also asked whether the Division could assure such confidentiality by contracting to have the material received and handled by a university or by a private supplier.

It is my understanding that various private travel attractions and facilities around the Commonwealth are willing to provide sensitive business data such as sales information to the Division for use in compilation of consolidated reports. The latter are published by the Division in statistical form which protects the individual sources. These publications are of significant benefit and use to the Division in its work of promoting tourism in the Commonwealth. Industry sources, however, do not want confidential data in the files of the Division to be available to their competitors or to the public under the Virginia Freedom of Information Act, §§ 2.1-340 et seq., of the Code of Virginia (the "Act").

The Act requires all "official records" to be made available to citizens of the Commonwealth or to the media upon appropriate request. See § 2.1-342. "Official records" include any written materials in the possession of a public body, officer or employee in the transaction of public business. Section 2.1-341(b). There is no general exemption for proprietary or confidential business information, although § 2.1-342(b) sets out eighteen categories of records excluded from the general disclosure requirement. None of these exclusions applies to the situation you have described. Absent specific statutory authorization, it is my opinion that the material in question cannot be lawfully retained in confidence by the Division itself in the event of a request for disclosure.

The same reasoning would apply with respect to information furnished to a State university. State institutions of higher education are considered public bodies under § 2.1-341. By definition, "public body" includes all governmental bodies, as well as organizations, corporations or agencies in the Commonwealth, supported wholly or principally by public funds. The only exclusion even remotely relevant is § 2.1-342(b)(16) which covers:

"Data, records or information of a proprietary nature, other than financial or administrative, produced or collected by or for faculty or staff of state institutions of higher learning in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or a private concern, where such data, records or information have not been publicly released, published, copyrighted or patented."

I have previously concluded that to avoid frustrating the purpose of the Act, the latter should be liberally construed to promote public awareness of governmental activities. Exemptions should be narrowly construed. See 1982-1983 Va. AG 708. I am, therefore, of the opinion that the exclusion stated above is designed to protect academic research and would not cover compilation of travel statistics by a university under contract to the Division.

With respect to the last portion of your question, I am unaware of any prohibition which would prevent the Division from contracting with a private entity to perform the work in question. I note, however, that if the private entity is supported wholly or principally by public funds, it may be regarded as a public body for purposes of the Act (see § 2.1-341); hence, its records would be subject to the Act. Assuming, however, that the private entity is not subject to the Act, then its records would not be subject to mandatory disclosure under the Act. Of course, if a report is submitted to the Division, then that report would become a part of the Division's records subject to disclosure under the Act.

As I indicated above, any agency action should avoid frustrating the purpose of the Act. While there may well be valid reasons for the Division's contracting with a private consultant to perform the work, it should not contract with a private party simply to avoid having to comply with the Act.