December 12, 2000
Ms. Dawn Stovall
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 correspondence of November 14, 2000.
Dear Ms. Stovall:
You have asked a question regarding access to information
regarding complaints, settlement amounts, and fees paid to
private attorneys by a public body, and whether this information
falls under the mandatory disclosure requirements of the Virginia
Freedom of Information Act (FOIA).
Specifically, you requested the total number of complaints
filed against the most two recent fire chiefs, the number
of grievances and complaints filed against the city's fire
department regarding racial or sexual discrimination or promotions
over the last five years, and the number and monetary amount
of those complaints settled out of court. Additionally, you
requested the number of those cases handled by private attorneys
for the city, the amount paid to those attorneys, and the
amount paid to a named attorney for a particular case cited
in your request. The city responded by invoking the personnel
records exemption available under FOIA in withholding records
concerning individual grievances. Additionally, the city asserted
that FOIA did not require a public body to summarize or compile
existing records to comply with a request.
Subdivision A. 4. of § 2.1-342.01 of the Code of Virginia
specifically allows public bodies to withhold personnel records
containing information concerning identifiable individuals.
Certainly complaints filed against a public employee would
be considered part of his or her personnel file. In support
of this assertion, an opinion of the Attorney General found
that the reasons for suspension of a fire chief were a part
of that individual's personnel file, and were thus confidential.1
Similarly, the complaints filed against particular individuals
would be exempt from public disclosure.
In addition to the information about specific individuals,
you also requested the number of complaints filed over the
last five years against the fire department concerning discrimination
and promotion. While this request does not ask for information
concerning an identifiable individual, "it is important to
distinguish between a request for information and a request
for documents."2 The Attorney General has opined
that FOIA applies to documents, and not information. Thus,
while FOIA does require all public records to be open for
inspection, subsection D of § 2.1-342 does not require a public
body to create a record if it does not already exist. Unless
the city or the fire department already maintains a general
list of the number and type of complaints filed, they are
under no obligation to compile such a record to answer your
request. The provision does not prohibit a public body from
compiling a new document, but instead leaves it to the body's
discretion to decide whether or not to do so.
The remainder of your request asks for information concerning
the monetary amount of complaints settled out of court and
fees paid to private attorneys. As discussed above, the city
may, but is not required to, compile such information into
a single document in response to your request if it is not
already summarized in the manner in which you requested it.
However, even if not compiled in a single record, individual
documents reflecting the amount paid in a settlement or to
an attorney are public record. The Supreme Court of Virginia
has held that accounting records relating to a settlement
agreement are subject to public disclose.3 In reaching
this decision, the court specifically listed documents such
as payment requests indicating the amount and to whom the
check is to be payable, and computer sheets showing the amount
paid out and recording the expenditure of public funds. In
following the logic of the Supreme Court of Virginia decision,
the amount paid to a private attorney for litigation defense
would likewise be a matter of public record. It seems that
the same types of documents as referenced in the settlement
case would also be relevant in determining legal fees paid
out of public funds.
As a general matter, you also inquired as to what you should
do next to obtain these records, since they have already been
denied by the public body in question. In light of this opinion,
this office would recommend renewing your request before pursuing
an alternative in court. Concerning your request for the number
of grievances over the last five years, the city has already
declined to create a new record. You may consider rewording
your request to obtain the information relating to the various
settlement amounts and fees paid to private attorneys, so
as to request specific documents relating to the settlements
and fees as opposed to asking for a list that the city may
not maintain. Should a renewed request not result in the city
providing the public records, FOIA sets forth provisions for
legal remedies in § 2.1-346.
Thank you for contacting this office. I hope that I have
been of assistance.
Maria J.K. Everett
11982-83 Op. Atty. Gen. Va. 726.
21991 Op. Atty. Gen. Va. 9.