FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
Mr. John Baulis
San Anselmo, California
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 May 18, 2001.
Dear Mr. Baulis:
You have asked whether
a Florida company may access "proof of coverage" information
from the Virginia Workers' Compensation Commission ("the Commission")
under the Virginia Freedom of Information Act (FOIA). You
indicate that proof of coverage generally includes information
such as name and address of the employer, the employer class
code or Standard Industry Classification code, the number
of employees, the current insurer, and the insurance policy
effective date or renewal date. When you requested this information,
the Commission responded that such information was collected
by and in the custody of a third party vendor, and as a result
that the Commission was not the custodian of those records.
You ask whether the Commission is required to provide you
with this information under FOIA.
FOIA requires 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. Therefore, the Commission
need not provide public records to out-of-state citizens or
corporations. However, because of the likelihood of an out-of-state
corporation getting a Virginia citizen to make the request
for it, which would require the public body to respond under
FOIA, this opinion will analyze the substantive question that
you have asked.
As the Commission
noted in response to your request, subsection B of § 2.1-342
requires that [a]ny public body which is subject to [FOIA]
and which is the custodian of the record shall respond
to a request for records. The Commission relied on the fact
that it did not have physical custody of the requested records
in asserting that it was not the custodian, and thus declined
to provide the records. FOIA does not define what it means
to be the custodian of a record. According to statutory construction
rules, in the absence of a statutory definition, a term is
considered to have its ordinary meaning, given the context
in which it is used.1 The policy of FOIA at § 2.1-340.1
dictates that [t]he provisions of the chapter shall be
liberally construed to promote an increased awareness by all
persons of governmental activity. These two principals
must be used to determine what it means for a public body
to be the custodian of a record.
The term "custodian"
is defined in the dictionary as one in charge of something.2
In the context of FOIA, the term is used when accessing public
records held by a public body. FOIA defines public records
at § 2.1-341 as all writings and recordings ... prepared
or owned by, or in the possession of a public body
or its officers, employees or agents in the transaction
of public business. (Emphasis added.) Construing the ordinary
use of the term "custodian" in this context, in light of the
liberal construction required by FOIA, it appears that a public
body can be a custodian in a broader sense than just having
physical possession of a document. In the instant case, all
Virginia employers must secure workers' compensation liability
insurance and file proof of coverage with the Commission pursuant
to § 65.2-804. Thus, while the Commission has chosen to contact
a third-party vendor to collect this data for it, the documents
that you request would appear to contain the type of information
that § 65.2-804 requires the Commission to maintain. Because
the Commission is statutorily mandated to collect the information,
it would remain in charge of these documents, to refer
back to the ordinary meaning of the term "custodian." As such,
the Commission is the legal, if not the physical, custodian
of the records.
The definition of
a public record further supports this interpretation. The
use of the word "or" in describing a public record prepared
or owned by, or in the possession of a public body
indicates that physical possession of a document by a public
body is not the only criterion for determining whether or
not it is accessible by the public. The definition indicates
that a record that a public body owns, but is not in physical
possession of, may still be a public record subject to public
access under FOIA. In addition, the definition of a public
record indicates that a record in the possession of an agent
of a public body would likewise be accessible under FOIA.
In the instant case, the third-party vendor is acting as an
agent for the Commission, because the Commission has delegated
its statutory duty to collect proof of coverage to the third-party.
Thus, records relating to the proof of coverage by Virginia
employers are owned by the Commission, and in the possession
of the Commission's agent. In applying this broad definition
of a public record in conjunction with the use of the term
"custodian," it becomes clear that "custodian" must have a
broader application than just physical possession in order
to effectuate the purpose and policy of public access behind
FOIA, and more specifically, the definition of a public record.
The scope of the term "custodian" has a broader application
than just physical possession of a document.
The Attorney General
of Virginia has issued one opinion addressing access to records
collected for a state agency by a private party.3
In that opinion, the Department of Tourism wished to compile
business and sales statistical data from travel attractions
and facilities around the state. The businesses were concerned
that confidential data provided to the Department of Tourism
used to compile the statistics would be subject to public
access under FOIA. The Department of Tourism asked if such
records would remain private if it contracted with a private
entity to compile the data. The Attorney General opined that
the data maintained by the private entity would not be subject
to disclosure unless it was submitted to the Department of
Tourism. This Attorney General's opinion is distinguishable
from the situation at hand, however. In the Attorney General's
opinion, the Department of Tourism was not obligated under
law to create such a report; instead it was used as one tool
by the Department to aid in promoting tourism in the Commonwealth.
In the instant case, the Commission is required by law to
collect certain information concerning employers in Virginia.
By choosing to utilize the services of a third-party vendor,
the Commission has delegated its statutory duty and authority
to collect such information, but ultimately under the law
the Commission retains responsibility for ensuring that the
information is collected. How it chooses to go about that
collection is up to the Commission, but it cannot escape the
requirements of FOIA by choosing to allow a third-party to
maintain the information for it.
As can be seen from
the discussion, the data collected from employers relating
to proof of coverage is a public record of the Commission.
As such, FOIA requires that such records must be open for
inspection and copying unless otherwise specifically provided
by law. Thus, the Commission may only withhold these records
if a statutory exemption applies, and not on the grounds that
it is not the custodian. Upon review of the exemptions set
forth in both FOIA and Title 65 relating to Workers' Compensation,
there does not appear to be an exemption that would apply
to proof of coverage information provided by employers to
the Commission. Thus, regardless of whether the Commission
itself maintains this information or whether it delegates
the task to another entity, the Commission must provide documents
containing such information to requesters under FOIA. While
not the physical custodian of the records, the Commission
remains the legal custodian by virtue of the fact that it
owns the records that are maintained by its agent.
subsection A of § 2.1-342 only requires that public bodies
open public records for inspection and copying to citizens
of the Commonwealth. Because the requester is not a citizen
of the Commonwealth, the Commission need not provide the requested
records as discussed at the beginning of this opinion.
Thank you for contacting
this office. I hope that I have been of assistance.
Maria J.K. Everett
Commonwealth Department of Taxation v.
Orange-Madison Coop. Farm Service, 220 Va. 655, 261 S.E.
2d 532 (1980); 1991 Op. Atty. Gen. Va. 413; 1986-87 Op. Atty.
Gen. Va. 174; see generally Norman J. Singer, Statutes
and Statutory Construction, 6th ed., § 46:01.
American Heritage College Dictionary (3d ed. 1993).
Op. Atty. Gen. Va. 439.