December 15, 2000
Mr. Wilson McIvor
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 e-mail of November 29, 2000.
Dear Mr. McIvor:
You have asked about obtaining documents relating to the
Commonwealth's new compensation plan under the Virginia Freedom
of Information Act (FOIA). Your first question asks how to
obtain information relating to the plan's development. Your
second question involves an attempt to obtain an annual report
of the Department of Human Resources, formerly the Department
of Personnel and Training ("the Department"), relating to
the compensation plan.
You state in your inquiry that you desire to discover the
developers' intentions behind the development of the compensation
program. The Commonwealth established a commission to study
and develop a new plan. Such a commission would fall under
the definition of a public body, set forth in § 2.1-341 of
the Code of Virginia. As a result, documents prepared by and
used by the commission would be public records, so long as
they do not fall under a specific exemption in FOIA or their
distribution otherwise prohibited by law. To obtain these
documents, follow the procedures set forth in subsection B
of § 2.1-342, which require you to identify the records you
wish to request with reasonable specificity. After receiving
your request, the public body will have five working days
to make one of the responses mandated by that same provision.
You have also inquired about receiving a copy of an annual
report created by the Department. The Department's final report
on the compensation reform plan states that it will publish
annual results that will, among other things, present statistical
analyses and comparisons to market data for comparable positions
in the private sector. You indicate that the Department has
denied you access to such a document, claiming that the data
is proprietary and copyright, and only available to human
Subsection A of § 2.1-342 states 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
during the regular office hours of the custodian of such records.
In order to deny access to a public record, the record must
fall under one of the enumerated exemptions found at subsection
A of § 2.1-342.01. Subsection B of § 2.1-342 sets forth the
procedures a custodian must follow if a record will be withheld.
The refusal must be in writing, identify the subject matter
of the withheld record, and cite the specific section of the
Code of Virginia that authorizes the withholding. If a document
contains both exempt and nonexempt information, the records
custodian must delete or excise only the exempt portion of
the record, and provide the nonexempt portion to the requester.
The refusal to release a portion of the record must also be
in writing, state the subject of the withheld portion, and
cite the specific Code section that authorizes withholding
Upon analysis of FOIA, it does not appear that the Department's
annual report would be the proper subject of any of the exemptions.
There are no exemptions for copyright data, and the few exemptions
allowing certain types of proprietary data to be withheld
are quite specific, and would not apply to the type of document
you indicate you are trying to seek. Thus, the annual report
of the Department would be a public record accessible by the
Thank you for contacting this office. I hope that I have
been of assistance.
Maria J.K. Everett