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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA


ADVISORY OPINIONS ISSUED

2004

Opinion No. Issue(s)

January


AO-01-04

Metropolitan Washington Airport Authority is subject to FOIA.

AO-02-04

A public body must give notice of the time, date, and location of its meetings, even if the only item on the agenda for the meeting is a closed session; a public body may withhold records and conduct closed meetings relating to contract negotiations until a decision whether or not to enter into the contract is reached by the public body.

February


AO-03-04

The Penninsula SPCA is acting as the animal-control arm of local government, and its records and meetings are open under FOIA to the extent they relate to these animal control functions.

March


AO-04-04

FOIA requires a public body to make available salary records of public employees; however, FOIA does not require a public body to create a spreadsheet or list out of these records, and cannot charge a requester to create such spreadsheets or lists unless the public body reaches an agreement with the requester prior to the creation of the record.

AO-05-04

Absent a specific court order, a public body cannot require a citizen of the Commonwealth to make a FOIA request through her attorney.

April


AO-06-04

Records of a committee established by a public body are public records subject to FOIA, even if the records are physically held by a private sector member of the committee at his private place of business; grant money received by a private organization from a government source is not considered "public funds" for purposes of determining whether an organization is supported wholly or principally by public funds.

AO-07-04

The records exemption at subdivision A 78 of § 2.2-3705 only exempts personal information provided to a public body for purposes of receiving e-mail from a public body; it does not apply to personal information provided to an individual elected official who chooses to send out e-mails or updates to constituents.

May


AO-08-04

Redevelopmental plans submitted to the director of a Redevelopment and Housing Authority may not be withheld as working papers because the Authority, and not the director, is required to approve the plans.

AO-09-04

The records exemption at subdivision A 85 of § 2.2-3705 for portions of school safety audits does not allow a school to withhold all records relating to a visitor monitoring procedure.

AO-10-04

Billing statements received by a public body from a private attorney for legal services are not subject to exemption as attorney-client privilege or work product.

June


AO-11-04

Records of all investigations of the Department of Health Professions, and not just records of active investigations, are confidential, even regarding the subject of the records.

AO-12-04

Gathering of chairmen and vice-chairmen of a board of supervisors and school board to discuss bond issues is not a meeting for purposes of FOIA when they were not appointed by their respective public bodies to advise the public bodies or perform delegated functions.

July


AO-13-04

FERPA & FOIA give access to educational records to the subject of the records, except that "sole possession records" are excluded from this requirement; when a student is enrolled in an institution of post-secondary education, the student, and not the parent, has the right of access.

AO-14-04

The exemption in subdivision 8 of § 2.2-3705.7 that allows for personal information concerning persons participating in federally funded rent-assistance programs to be withheld does not apply to records relating to landlords who enter into contracts with local housing authorities to provide such housing.

AO-15-04

A gathering of three members of a school board at a citizen's home is a meeting under FOIA when the purpose of the gathering is to discuss matters of public business pending before the board.

AO-16-04

A public body may request a deposit before proceeding with a request if it estimates that the request will exceed $200 and may toll its response to the entire request until the deposit is received; a requester has the right to narrow a request in an attempt to lower the costs, but the requester must clearly state that he is narrowing the request, and not simply asking that certain records be provided immediately while the remainder of the request is being processed before paying the deposit; making a FOIA request is not an adversarial process, and clear communication from both parties is often the best way to avoid disputes.

August


AO-17-04

The working papers exemption found in subdivision 2 of § 2.2-3705.7 was designed to provide an unfettered zone of privacy for the deliberative process. The exemption does not expire unless the working papers are disseminated or otherwise made public by the official to whom the exemption applies. Absent such a release, a record created by or for one of the named officials for his personal or deliberative use retains the characterization of a working paper.

AO-18-04

A verbal request for records constitutes a FOIA request and thereby invokes the requirements of FOIA. The custodian of the records may ask that a request be put in writing, but cannot refuse to honor a request because it is a verbal request or require the request in writing. In responding to a request, a public body must provide all records that are responsive to the request. If any responsive records are withheld, an exemption must be cited in writing that allows the custodian to withhold those records.

AO-19-04

Two members of a local electoral board are not violating FOIA by using e-mail to communicate with one another when the use is the equivalent of sending a letter; however, members of public bodies should be cautioned against using e-mail in a manner that appears to entail simultaneity.

AO-20-04

A committee composed of two members of a seven-member board is a public body under FOIA because it was created by the board to perform delegated functions of the board and to advise the full board. Therefore, when the two members of the committee meet to discuss public business, it is a meeting under FOIA.

September


AO-21-04

Whether allowing a member of a local disability services board with a disability to participate in a meeting via telephone is required by the Americans with Disabilities Act, despite the clear prohibition found in FOIA, hinges on an interpretation of the Americans with Disabilities Act and not FOIA. The FOIA Council has the statutory authority only to interpret FOIA and therefore lacks the requisite legal authority and the expertise to opine on the requirements of the ADA.

October


AO-22-04

It is the policy of this office not to issue an opinion once litigation is commenced or a judge of competent jurisdiction has rendered an opinion on the same factual question(s) raised in a request for an advisory opinion of the Council. The court, and not the Council, is the appropriate body to decide and settle a dispute as a matter of law. An entity that was subject to FOIA by virtue of its receipt of sufficient public funds may later be excluded from the definition of a "public body" if it no longer is supported wholly or principally by public funds; it is a question of fact that must be decided on a case-by-case basis.

November


AO-23-04

Applications for appointment to fill vacancy on local governing body are exempt from disclosure as personnel records. A public body may make reasonable charges not to exceed its actual costs in responding to a FOIA request.

December


AO-24-04

A motion to convene a closed meeting must identify the subject and purpose of the meeting, and cite to a specific statutory exemption. Decisions reached in closed session do not become effective until voted upon in an open meeting.

AO-25-04

Open meeting minutes must be made available to any citizen of the Commonwealth upon request during the regular office hours of the custodian. Information that must be included in meeting minutes of a public body is set forth in FOIA. The intent of FOIA is best achieved by clear communication between the requester and the public body.

AO-26-04

The Virginia Board of Bar Examiners has statutory discretion to decide whether or not to release bar examination scores, regardless of whether the scores in question are those of particular individuals or those of aggregate groups.

AO-27-04

A task force of citizens organized by a mayor-elect is not a "public body" subject to the open records and meetings requirements of FOIA.

AO-28-04

A private entity that exercises no governmental authority and is not wholly or principally supported by government funds is not a public body subject to FOIA's records and meeting requirements. Money received by a private entity from government sources under a procurement contract should not be used to determine whether an entity is wholly or principally supported by public funds.

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