FOI Advisory Council Opinion AO-06-06


May 25, 2006

Steven Shoon
Petersburg, 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 letters of May 9, 2006, and May 11, 2006.

Dear Mr. Shoon:

You have asked whether subsection C of § 2.2-3703 of the Virginia Freedom of Information Act (FOIA), concerning rights of incarcerated persons, violates the standards of substantive due process under the Fifth and Fourteenth Amendments to the Constitution of the United States. You expressed particular concern that the language used in this subsection may deny FOIA rights to persons who are incarcerated but not convicted of any criminal offense.

The General Assembly has stated that the purpose of FOIA is to ensure the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. However, subsection C of § 2.2-3703 reads as follows: No provision of this chapter or Chapter 21 (§ 30-178 et seq.) of Title 30 shall be construed to afford any rights to any person incarcerated in a state, local or federal correctional facility, whether or not such facility is (i) located in the Commonwealth or (ii) operated pursuant to the Corrections Private Management Act (§ 53.1-261 et seq.). However, this subsection shall not be construed to prevent an incarcerated person from exercising his constitutionally protected rights, including, but not limited to, his rights to call for evidence in his favor in a criminal prosecution. Thus while the General Assembly has chosen to grant rights of access to public records and public meetings to citizens generally, it has chosen not to grant those same rights to incarcerated persons.

Whether subsection C of § 2.2-3703 violates the federal constitution is not a matter of interpretation or guidance under FOIA. Rather, it is a question regarding the authority of the General Assembly to grant rights to citizens in general while withholding those same rights from incarcerated persons, and whether that exercise of state legislative authority violates the federal constitution. The powers and duties of the Freedom of Information Advisory Council (the Council) are delimited by statute, as set forth in § 30-179 of the Code of Virginia. While the Council does have the power and duty to provide advisory opinions, training, and education regarding FOIA, the Council does not have the power or duty to interpret the federal constitution or the application of constitutional law to specific legislative actions of the General Assembly of Virginia. To offer an opinion regarding the constitutionality of subsection C of § 2.2-3703 would be beyond the authority of the Council.

You also requested that this office forward your request to the Office of the Attorney General in the event that the opinion requested is beyond the authority of the Council. Subsection A of § 2.2-505 states as follows: The Attorney General shall give his advice and render official advisory opinions in writing only when requested in writing so to do by one of the following: the Governor; a member of the General Assembly; a judge of a court of record or a judge of a court not of record; the State Corporation Commission; an attorney for the Commonwealth; a county, city or town attorney in those localities in which such office has been created; a clerk of a court of record; a city or county sheriff; a city or county treasurer or similar officer; a commissioner of the revenue or similar officer; a chairman or secretary of an electoral board; or the head of a state department, division, bureau, institution or board.

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


Maria J.K. Everett
Executive Director