FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
Ms. Debbie Northedge
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 January 26, 2001.
Dear Ms. Northedge:
You have asked whether
you may access audit information from the Virginia Employment
Commission (VEC) under the Virginia Freedom of Information
Act (FOIA). You indicate that you are currently awaiting a
hearing on your claim for unemployment compensation, and some
question remains as to whether you were an employee or an
independent contractor with your prior employer. You state
that VEC is also conducting an audit of your prior employer
in order to determine if the employer properly reported the
wage earnings of its employees. You believe that the outcome
of the audit will have a bearing on the outcome of your hearing,
and thus you would like to obtain documents relating to VEC's
conclusions in the audit.
Subsection A of
§ 2.1-342 of the Code of Virginia provides that all records
of public bodies are open for public inspection and copying
[e]xcept as otherwise specifically provided by law.
There are no exemptions within the text of FOIA that would
apply to the type of documents you have requested. However,
subsection A of § 60.2-114, in Title 60.2 of the Code addressing
unemployment compensation, requires VEC to keep information
received from employers in the course of carrying out its
administrative duties confidential, and states that [i]nformation
thus obtained shall not be published or be open to public
inspection. The Virginia Employment Commission conducts
audits of employers as part of its administrative duties to
ensure that employers report the earnings of its employees
accurately, and thus such documents would not be available
under FOIA. In addition, unlike many of the exemptions set
forth in FOIA, which are discretionary in nature, the exemption
for withholding the VEC records from public access is mandatory.
The penalty for any member or employee of VEC who violates
§ 60.2-114 is a Class 2 misdemeanor.
You indicate that
you requested these documents in anticipation that they would
be relevant to your hearing. Subsection A of § 60.2-114 contemplates
and provides for such a situation. It states that any claimant
at a hearing before an appeal tribunal or the Commission shall
be supplied with information from such records to the extent
necessary for the proper presentation of his claim. Thus,
if any portion of VEC's audit with regard to whether your
former employer properly reported your wage earnings is necessary
for you to present your claim at the hearing, VEC will provide
you with that relevant information. In addition, the hearing
officer presiding over your hearing would have access to the
audit information and could enter relevant portions into the
record of the hearing as he deemed appropriate.
In conclusion, the
VEC audit information that you requested is not subject to
public inspection. However, if VEC finds that the information
is relevant to your hearing, it will provide you the information
necessary for you to present your claim.
Thank you for contacting
this office. I hope that I have been of assistance.
Maria J.K. Everett