FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
Mr. Mike Davidson
Director, Community & Economic Development
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 February 12, 2001.
Dear Mr. Davidson:
You have asked two
questions concerning the Virginia Freedom of Information Act
(FOIA). Your first question concerns FOIA exemptions relating
to economic development prospects. Your second question asks
whether FOIA applies to the Governor's Development Opportunity
You first asked
if the Virginia Freedom of Information Advisory Council maintains
a list of exemptions and specific Code of Virginia sections
related to the release of information about economic development
prospects. Although the Council does not presently compile
such a list, there are three FOIA exemptions that address
economic development. Subdivision A. 19. of § 2.1-342.01 of
the Code of Virginia exempts from public disclosure [f]inancial
statements not publicly available filed with applications
for industrial development financings. Subdivision A.
22. of § 2.1-342.01 exempts certain confidential proprietary
records, provided these records are voluntarily given by a
private business pursuant to a promise of confidentiality
by a local or regional economic development authority, and
are used for business, trade or tourism development. This
same subdivision also exempts records that are prepared by
the Virginia Economic Development Partnership relating to
businesses considering locating or expanding in Virginia.
This portion of the exemption applies where competition or
bargaining is involved; when the disclosure of such records
would adversely affect the financial interest of the government
unit involved. Finally, subdivision A. 5. of § 2.1-344 allows
a closed meeting to be held to discuss a prospective business
or industry or the expansion of an existing business or industry
where no previous announcement has been made of the business'
or industry's interest in locating or expanding its facilities
in the community.
Your second question
asks if the Governor's Development Opportunity Fund (the "Fund")
is subject to FOIA. Section 2.1-51.6:5 sets forth the purpose
of and requirements for the Fund. The Fund is to be used
by the Governor to attract economic development prospects
and secure the expansion of existing industry in the Commonwealth,
and as such, records related to the Fund would be public.
FOIA defines public records as those prepared or owned
by, or in the possession of a public body or its officers,
employees or agents in the transaction of public business.
Subdivision A. 6. of § 2.1-342.01 does exempt the Governor's
working papers, defined as records prepared by or for the
[Governor's] personal or deliberative use, and correspondence.
Records of the Fund that fall under this definition would
be exempt. However, records relating to the criteria used
in awarding grants or making loans from the Fund, as required
by subsection E of § 2.1-51.6:5, or biannual reports of the
Fund, as required by subsection F of § 2.1-51.6:5, would be
matters of public record.
Thank you for contacting
this office. I hope that I have been of assistance.
Maria J.K. Everett