FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
Mr. Patrick Kershaw
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-mails
of March 21, 2001 and April 11, 2001.
Dear Mr. Kershaw:
You have asked two
separate questions under the Virginia Freedom of Information
Act (FOIA). First, you have asked for the Virginia Freedom
of Information Advisory Council ("the Council") to investigate
why the Fluvanna County government is not releasing certain
requested information under the Virginia Freedom of Information
Act (FOIA). Second, you ask about the application of the attorney-client
privilege exemption of FOIA to a document that was distributed
to a member of the public by one member of the Board of Supervisors.
You allege that this distribution, without the authorization
of the Board, negates the application of the exemption, and
thus the document should be open to the public. This question
was the subject of a previous opinion of the Council to you,
dated January 31, 2001.1
of the Code of Virginia grants the Council specific powers
and duties. The Council has the authority to:
upon request, advisory opinions or guidelines, and other
appropriate information regarding the Freedom of Information
Act (§ 2.1-340 et seq.) to any person or agency of state
or local government, in an expeditious manner;
training seminars and educational programs for the members
and staff of public bodies and other interested persons
on the requirements of the Freedom of Information Act;
educational materials as it deems appropriate on the provisions
of the Freedom of Information Act;
from any agency of state or local government such assistance,
services and information as will enable the Council to
effectively carry out its responsibilities. Information
provided to the Council by an agency of state or local
government shall not be released to any other party unless
authorized by such agency; and
annually on or before December 1 of each year on its activities
and findings regarding the Freedom of Information Act,
including recommendations for changes in the law, to the
Governor and the General Assembly.
The Council may
only perform those functions specifically delegated to it.
As you can see from this list, the Council does not have the
statutory authority to investigate an alleged FOIA violation.
In your email of
March 21, 2001, you indicate that your local government is
not releasing information that you believe is available under
FOIA. You brought to our attention a FOIA lawsuit settled
in another county. According to a newspaper article that you
forwarded, the requestor involved in the lawsuit asked for
"all correspondence, contracts, agendas, notes, minutes, resolutions,
maps, plans, drawings, proposals and other records relating
to" a sewage plant study. Under the settlement agreement,
the requestor was allowed access to these documents. You assert
that you have made a similar type of request in your own county
but have been denied access to some of the relevant documents.
While I am not authorized
to investigate your allegation of a FOIA violation, I suggest
that you renew your request for the documents, bringing this
recent FOIA lawsuit to the attention of the records custodian.
If this approach does not produce the desired documents, and
you still feel that your rights and privileges under FOIA
have been violated, § 2.1-346 sets forth the remedy available
to you under the law. To enforce your rights, you may file
a petition of mandamus or injunction, supported by an affidavit
showing good cause, addressed to the general district court
of the court of record of the county or city from which the
public body has been elected or appointed to serve and in
which such rights and privileges were so denied.
In addition to your
request for an investigation, in an e-mail dated April 11,
2001 you asked about the application of the attorney-client
privilege exemption found at subdivision A. 7 of § 2.1-342.01.
You had previously asked a question about the application
of this exemption to a particular document, and I responded
in an Advisory Opinion.2 You argue that because
one member of the Board released the document to an outside
party, without the consent of the full Board, the privilege
has been breached and the exemption no longer applies. I previously
opined in response to your question that the document was
subject to the attorney-client privilege, and as such the
public body, or members thereof, have the discretion to decide
how much or how little of the privileged information will
be made available to the public. This opinion is not affected
by the new information you now provide that indicates that
one member of the Board decided to release the document to
an outside party without the consent of the Board as a whole.
Thank you for contacting
this office. I hope that I have been of assistance.
Maria J.K. Everett
Virginia Freedom of Information Advisory Opinion 8 (2001).